- Do you believe this is domestic violence?
- Can you win with these charges in court to get a temporary restraining order?
- What does it mean in a trial that the plaintiff must bear his/her burden of proof by a preponderance of the evidence?
V.M. v. A.M.
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
Plaintiff, wife, V.M. and defendant husband A.M., were married and living together at the time of several events identified in the TRO application signed by a family court judge. Husband had been unfaithful to wife and she informed him she wanted to end the marriage. According to the plaintiff, they were still engaging in sexual relations one night but wife told husband she wanted “to stop.” Defendant responded with “no” but plaintiff continued to say “no.”
After it was over, she asked “please not do that again”? He responded with “whenever I feel like having sex with you, I’m going to do it.” The sexual assault happened three times; Saturday morning, Saturday night, and Sunday morning. Plaintiff testified she went to the hospital after the third alleged act of sexual assault and reported the incidents to the police. The police arrested defendant.
As a matter of proper civil procedure, at no point in time did the court ask either party if he or she wanted to cross-examine the other. At the conclusion of the hearing, the court found plaintiff failed to prove the allegations in her complaints beyond the preponderance of the evidence of standard. The trial court found both parties equally credible on the question of consent and used that as an additional basis to deny plaintiff the FRO relief finding: “the context of sexual assault between married couples is difficult to determine because defend is already in the bed by the consent of everyone.”
Plaintiff, now represented by a lawyer, moved for reconsideration of the Order dismissing her complaint and TRO. Plaintiff with counsel now contended the court was required to “decide who, in fact, is credible and who wasn’t credible.” Plaintiff also argued the trial judge should have allowed the parties to cross-examine each other. Finally, the wife argued it was error for the court to presume because the parties were married plaintiff had give defendant consent to have sex. The court denied that motion and stated, “it is not up to a court to tell a party he or she has the right to cross examine the other.” HERE THE TRIAL COURT WAS CLEARLY OVERTURNED!
On the issue of consent, the court stated, “But in a marriage, when one person says I did have consent, and the other person said, I don’t have consent, and that’s all I have, I take the context of them being married. And I think it’s totally plausible that someone who is married has consent to have sex with their spouse.”
Appellate Court rejected the contention that if at the conclusion of a trial a court finds the evidence in equipoise (MEANING ONE SIDE IS TOTALLY EQUAL WITH THE OTHER) because all witnesses were equally credible, the court must find the witness or witnesses for one party more credible than the other. If the trial court makes this finding then the plaintiff, who has the burden of proof, will actually lose their case!
The Appellate Court did recognize the court did not ask the adversary party if she or he wanted to cross-examine the other, or remind the adversary party of the right to do so. The Appellate Court emphasized the importance of making sure self-represented litigants in domestic violence hearings are afforded due process, including that they understand they have the right to cross examine witnesses. The Appellate Court recognized the court did not remind plaintiff or defendant they had a right to cross examine. The panel found “the integrity of the fact-finding process was compromised, because the trial court was unable to fully and fairly assess credibility.” If the court did ask if any party had any questions of the adversary, the cross-examining party may had succeeded in drawing out testimony pivotal on the issue of consent or credibility. However, the court did may have deprived of evidence vital to the outcome of this matter.
Plaintiff also argued the court’s belief married persons have blanket consent to have sex with their spouses. The panel noted there is no support for the premise a married person consents to having sexual relations with his or her spouse and there is no presumption of consent, as well. The New Jersey Criminal Code expressly excludes marriage to the victim as a defense against prosecution of sexual crimes. The Appellate Court reversed the October, 2016 order dismissing plaintiff’s complaint and amended temporary restraining order, reverse the December 9, 2016 order deny plaintiff’s motion for reconsideration, and remand this matter for a new hearing. The matter will be assigned to a different judge and reverse and remanded for further proceedings consistent with the appellate court’s opinion.