To obtain a Final Restraining Order, a claimant must, among other things, establish that one of the predicate act of domestic violence actually occurred under N.J.S.A. 2C:25-19. Notably for the purpose of this blog entry, theft is not one of those predicate acts. The question then begs – can theft be a form of domestic violence as a component of a claim that one of the actual listed predicate acts occurred? As recently addressed by the Appellate Division in E.M.B. v. R.F.B., a new published (precedential) decision, the answer could be "yes."
In E.M.B., an elderly mother filed a domestic violence complaint against her 56-year old son, with whom she resided. Mom claimed that Son had engaged in an act of domestic violence by stealing her car keys, cell phone, bank book, money and some jewelry from her bedroom. Based on these factual details, and Mom’s testimony, which the trial court found credible, a Final Restraining Order was issued based on a finding that Son harassed mom.
In reversing the trial court, the Appellate Division broke its decision down into two parts. First, it concluded that theft in itself is not a predicate act under the Prevention of Domestic Violence Act and, as a result, a Final Restraining Order could not be issued on a claim of theft alone. The Appellate Division then went into a more detailed analysis as to whether the acts of theft could be classified as an act of harassment.
As to one comment made by Son that Mom was a "senile old bitch," the Appellate Division found that, upon a review of the context and surrounding circumstances, while the phrase was upsetting to Mom, there was no purpose to harass behind the statement and no violation under either subsections (a) or (c) of the harassment statute. The Appellate Division made a brief, yet interesting commentary on the constitutional implications of restricting speech in the context of the harassment statute, noting that because the First Amendment "permits regulation of conduct, not mere expression[,]" the speech must have a "specific intention [of] harassing the listener." Mere expressions of opinion uttered through the use of offensive language is not enough to establish harassment.
As to the acts of theft, even if they could be considered a course of conduct, the Appellate Division concluded that there was a lack of proof that Son was motivated by a purpose "to alarm or seriously annoy" as required by subsection (c). To that end, the Appellate Division found no evidence that the theft was anything more than the son taking Mom’s property for his own use. As to the prior history of domestic violence aiding the court in finding the occurrence of a predicate act of harassment, the Court concluded that prior incidents of theft could not be relied upon without proof that the thefts occurred with a purpose to harass Mom. As a result, the Final Restraining Order was reversed.
While we have blogged about the somewhat difficult requirement of proving a "purpose to harass" in the past, E.M.B. is interesting in its constitutional analysis and review of the harassment statute in the context of theft.