Docket No. A-3899-22
Decided August 5, 2024
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent published decision the Appellate Division of New Jersey overturned the entry of a Final Restraining Order (FRO) after defendant invoked his 5th amendment rights and the Trial Court drew a negative inference against defendant.
In T.B. v. I.W., Plaintiff obtained a TRO on June 4, 2023, alleging defendant sexually assaulted her in his apartment while their son was in a separate room. She later amended the TRO, first on June 19, 2023, and again on July 10, 2023, to include details regarding the sexual assault, prior history of alleged domestic violence, and additional acts of harassment and lewdness. Specifically, the amended TROs outlined various events occurring between March 2021 to April 2023, including a previous sexual assault and two prior TROs. Both earlier TROs were dismissed, one by court order and the other at plaintiff’s request.
During the one-day trial, where both parties were represented by counsel, plaintiff testified on her own behalf and defendant elected to not testify, with his counsel claiming “the Fifth Amendment is such a compelling amendment, it is bedrock a part of due process that a defendant shouldn’t be compelled to testify” and “it forces a defendant to reveal a defense, when they would not have to otherwise.”
Plaintiff testified she and defendant were in a dating relationship for approximately three years before the relationship ended. She also explained that she and defendant have a child together, who was then two years old. She stated on the day of the alleged sexual assault, defendant exercised his scheduled overnight parenting time at his apartment, pursuant to their agreement. Plaintiff explained she would often sleep on a mattress on the floor with their son while defendant slept in his bed during overnight parenting time at defendant’s apartment, even though there was no requirement for supervised visits.
That night, plaintiff slept over and awoke to defendant sitting next to her mattress, masturbating. Defendant told her to watch him and get in his bed. Plaintiff left the room without replying and sat on the couch. Defendant followed her, sat on the couch, and continued to masturbate. She detailed how defendant forced her to perform oral sex on him, removed her clothing, and then forcibly penetrated her with his penis and fingers despite her repeated protests. After the incident concluded, their son began crying and plaintiff returned to her son to put him back to sleep. She also stated later that morning, she awoke again to defendant masturbating near her. That evening plaintiff received medical treatment at a hospital for pain in her abdomen and notified staff of the sexual assault. Two days later, she reported the assault to the police and obtained the TRO.
After plaintiff’s testimony, the trial court granted the FRO, concluding defendant committed the predicate act of sexual assault and that act “would cover such acts as harassment [and] lewdness” because “[t]hat’s all piled in the predicate act.” The court relied on defendant’s decision to not testify, stating when a defendant chooses to not testify, the court may draw an adverse inference to find the alleged acts occurred.
Defendant appealed and the Appellate Division found that the Court may not use an adverse inference against a defendant in a restraining order trial who invokes their 5th amendment right not to testify, even though this would be permissible in other civil matters.
Final restraining orders have severe consequences in New Jersey. Often times restraining orders are filed in conjunction with criminal charges stemming from the same incident. It is common for a defendant to plead the 5th and refuse to testify in this scenario to avoid self-incrimination. Until now, it was unclear as to whether the Trial Court can use an adverse inference against defendant for invoking his 5th amendment right. This ruling makes it clear that restraining order trials are not the same as other civil matters in that there are severe consequences that can affect a defendant’s liberty if a final restraining order were granted against them. In recognizing these consequences, the Court allows a defendant to plead the 5th in a restraining order trial without fear of an adverse inference put against them.
If you have questions about final restraining orders, temporary restraining orders, parenting time, alimony, child support, divorce, custody, or appeals, contact the experienced domestic violence attorneys at Hark & Hark today.
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