NEW JERSEY’S SEXUAL ASSAULT SURVIVOR PROTECTION ACT PROVIDES PROTECTIVE ORDER FOR THOSE NOT ELIGIBLE FOR RESTRAINING ORDER UNDER PREVENTION OF DOMESTIC VIOLENCE ACT
Docket No. A-47-22
Decided April 22, 2024
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent decision, the Supreme Court of New Jersey affirmed the entry of a Final Protective Order (FPO) under the Sexual Assault Survivor Protection Act of 2015 (SASPA) and analyzed the appropriate legal standard.
In C.R. v. M.T., Plaintiff “Clara” testified that, in June 2018, she was sexually assaulted by defendant “Martin.” Clara applied for a temporary protective order (TPO), and then a final protective order (FPO), under SASPA. After hearing testimony, the trial court made explicit findings under N.J.S.A. 2C:14-16(a)(1) and (2). The court found that (1) Clara had been “subjected to nonconsensual sexual contact within the meaning of SASPA” because her “extreme voluntary intoxication” made it impossible for her to consent to sexual contact; and (2) there was a possibility of future risk to Clara’s safety or well-being because Martin had been subjected to legal fees defending against the SASPA FPO and “may now harbor a grudge against [Clara] which would probably not have occurred but for these proceedings.” The court therefore issued an FPO directing Martin to have no contact with Clara.
The Appellate Division reversed on the basis of the test the trial court had used to assess consent under N.J.S.A. 2C:14-16(a)(1). 461 N.J. Super. 341, 350-51 (App. Div. 2019). The Court reversed, holding that “the affirmative consent standard . . . is the correct standard to be applied in determining whether sexual activity” was consensual under SASPA. 248 N.J. 428, 431, 445 (2021). The Court noted that the trial court on remand could expand upon its abbreviated discussion of N.J.S.A. 2C:14-16(a)(2). Id. at 448.
On remand, Clara testified that she continued, more than three years later, to be intensely traumatized by the sexual assault. Martin did not testify, electing to rely on his testimony from the initial hearing. The court found Clara’s testimony from the first and second hearings “credible and believable” and Martin’s testimony from the first hearing “not credible” and “not truthful.” On the first factor, N.J.S.A. 2C:14-16(a)(1), the court therefore held that consent to sexual contact “was not affirmatively and freely given.” Turning to N.J.S.A. 2C:14-16(a)(2), the court noted that “the statute only requires a possibility, as opposed to a probability.” The court found “a significant risk to [Clara’s] psychological well-being should this order not remain in effect” and ordered the FPO previously issued to remain in effect.
The Appellate Division affirmed, concluding that “plaintiff satisfied her burden of demonstrating a predicate act as defined under” N.J.S.A. 2C:14-16(a)(1) and that “there exists a possibility of future risk to her safety or well-being as required by” the ordinary terms of -16(a)(2). The Court granted certification limited to the interpretation of N.J.S.A. 2C:14-16(a)(2). 254 N.J. 183 (2023).
The Supreme Court of New Jersey held The plain language of N.J.S.A. 2C:14-16(a)(2) creates a standard that is permissive and easily satisfied. Here, plaintiff testified that a sexual assault “destroyed” her, she was intensely traumatized, and she was “terrified” for her safety. The family court found her testimony credible. Based on that testimony, the court held plaintiff had demonstrated a “possibility of future risk” to her “safety or well-being.” The Court affirms.
“Any person alleging to be a victim of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct,” who is not eligible for a restraining order as a “victim of domestic violence” under the Prevention of Domestic Violence Act of 1991 (PDVA) may apply for a protective order under SASPA. N.J.S.A. 2C:14-14(a)(1), -16. The standard for granting a SASPA protective order differs depending on whether the applicant seeks a temporary or final order. Importantly, an FPO does not require a showing that it is “necessary to protect the safety and well-being” of the victim like a TPO does, see N.J.S.A. 2C:14- 15(a); rather, an FPO requires only the “possibility of future risk to the safety or well-being of the alleged victim,” N.J.S.A. 2C:14-16(a)(2).
The permissive standards for a SASPA TPO and a PDVA temporary restraining order (TRO) are nearly identical, as are the procedures for seeking a PDVA final restraining order (FRO) and a SASPA FPO. Notably, both SASPA FPOs and PDVA FROs require consideration of a list of non-exhaustive factors, but SASPA lists only two such factors — “(1) the occurrence of one or more acts of nonconsensual sexual contact, sexual penetration, or lewdness . . . ; and (2) the possibility of future risk to the safety or well-being of the alleged victim,” N.J.S.A. 2C:14-16(a) — whereas the PDVA lists six, see N.J.S.A. 2C:25-29(a). The Legislature could have duplicated the second factor for a PDVA FRO — “[t]he existence of immediate danger to person or property,” N.J.S.A. 2C:25-29(a)(2) — in SASPA, but it did not. In addition, the consequences to a defendant of a PDVA FRO are drastically different from the consequences to a respondent of a SASPA FPO.
Applying ordinary definitions of the terms used in N.J.S.A. 2C:14-16(a)(2), the statute’s plain language requires a court to consider whether there is a chance that a survivor may be exposed to physical danger, risk, or injury, or may be exposed to something emotionally unwelcome or unpleasant that could make the survivor feel uncomfortable, unhealthy, or unhappy. Because the language of factor two is centered on the safety or well-being of the victim-survivor, a survivor’s own testimony regarding possible future risks to their safety or emotional well-being can suffice. The Court’s reading of the plain text of factor two as creating a lenient and easy-to-satisfy standard is reinforced by context: the “possibility of future risk” required for a SASPA FPO is less demanding than the “necessary” protection required for a SASPA TPO or the “immediate danger” required for a PDVA FRO.
If you have a Temporary Restraining Order (TRO), Final Restraining Order (FRO) Temporary Protective Order (TPO) or Final Protective Order (FPO) against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions, appeals, and more.
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