Opinion 05-84

September 8, 2005

Digest:         Under the circumstances presented, a judge is not ethically required to report an apparent incident of statutory rape that came to the judge’s attention when a 15 year old pregnant female, pursuant to the Domestic Relations Law and with her parents’ consent, filed a petition in the judge’s court seeking authorization to marry.

Rules:          22 NYCRR 100.3(D); Opinion 88-85/88-103 (Vol. II); 03-110; 05-30.

Opinion:

         A judge asks whether the judge has an “absolute duty to report what appears to be an incident of statutory rape” that came to the judge’s attention when a 15 year-old pregnant female, pursuant to the Domestic Relations Law, filed a petition in the judge’s court seeking consent to marry. The petition indicated that the petitioner’s parents were consenting to the marriage, that the person whom the petitioner sought to marry was 21 years of age; and that the petitioner and the petitioner’s husband-to-be were expecting a baby. After consultation with a law guardian, the petitioner withdrew the petition.

         This Committee previously has advised that while a judge who receives information indicating a substantial likelihood that another judge or an attorney has committed a substantial violation of the Rules Governing Judicial Conduct or the Code of Professional Responsibility, respectively, must take appropriate action, no similar rule has been adopted requiring a judge to report apparently illegal conduct by a litigant or witness. 22 NYCRR 100.3(D); Opinion 88-85/88-103 (Vol. II); 03-110; 05-30. The likely reason for this distinction is that, “. . . the primary purpose of a legal proceeding is to ascertain the truth, and if litigants or witnesses know that the judge presiding at a trial is obligated to report illegal conduct revealed in the course of litigation, such litigants and witnesses might be unwilling to testify truthfully about such conduct. Therefore, as a general rule judges are granted discretion, under the proper circumstances, whether to report instances of illegal conduct revealed in the course of proceedings before the judge. The exercise of that discretion depends on a variety of circumstances, including the likelihood of injury if the conduct is not reported.” Opinion 03-110.

         Based on the facts presented, it is the Committee’s opinion that, while the inquiring judge, in the exercise of discretion, may decide to report the matter to a law enforcement or other authority, there is no ethical requirement to do so. Therefore, to decline to do so would violate no ethical duty.