In a recent published (i.e. precedential) decision, C.R. v. M.T., the New Jersey Appellate Division elaborated upon the legal standard proving that a sexual encounter during which one party was intoxicated was non-consensual under the Sexual Assault Survivor Protection Act (SASPA) N.J.S.A. 2C:14-13 to -21.

Although we have blogged frequently on domestic violence restraining orders obtained under the New Jersey Prevention of Domestic Violence Act, SASPA offers another avenue to obtain restraining orders for victims of sexual assault.  In C.R., the plaintiff commenced an action under SASPA in order to restrain the defendant from having any contact or communication with her.  The question in dispute was not whether a sexual encounter occurred – both parties agreed that it had – but rather whether the plaintiff was capable of providing her consent for the encounter and, if so, whether she had in fact done so.

Under SASPA, the first factual hurdle that a plaintiff must overcome is proof of “the occurrence of one or more acts of nonconsensual sexual contact sexual penetration, or lewdness, or any attempt at such conduct.” This must be proven by a preponderance of the evidence, meaning that the plaintiff must convince the finder of fact that it is more likely than not that there was a sexual encounter that was non-consensual.  Furthermore, as the trial court acknowledged, consent given out of fear and/or consent that is ultimately revoked is treated under the statute as a lack of consent.  As stated in the decision In re MTS, 129 N.J. 422, 444 (1992), “Permission to engage in sexual relations must be freely given and that willingness may be inferred from acts or statements reasonably viewed in light of the circumstances.”

The second prong that the plaintiff must establish in order to obtain a restraining order is that such protection is needed due to “the possibility of future risk to the safety or well-being of the alleged victim.”

The Appellate Division decision addresses the first prong, namely the question of adequate proof that the sexual encounter was non-consensual. One way in which the statute permits a lack of consent to be established is via temporary mental incapacity, which can be generated by the victim’s intoxication. In this case, the plaintiff argued that she was so intoxicated from drinking alcohol that she temporarily lacked the capacity to provide her consent to the sexual encounter.  The trial judge agreed.

The Appellate Division described this issue as having two components.  First, whether the plaintiff expressed or conveyed her consent to engage in the encounter and, second, whether, if not, she was too intoxicated to be capable of consent.  The trial judge correctly found that both parties presented versions of events from the encounter in question that were equally plausible.  On the plaintiff’s side, she testified that her original consent was provided only out of fear and that, eventually, she revoked it.  She further argued that, regardless, she was not capable of providing consent because she was temporarily mentally incapacitated.  It is that terminology that the Appellate Division focused on in its analysis.

SASPA defines a sexual assault victim as “one who the actor knew or should have known” was, among other things, “mentally incapacitated” at the time of the encounter.  The statute defines mental incapacitation as:

that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent . . . .  N.J.S.A. 2C:14-1(i).

The Appellate Division interpreted this statute as saying that a victim may prove the lack of consent a mental incapacity brought on by either voluntary or involuntary intoxication.  Put another way, whether the victim voluntarily drank to the point of intoxication (which, in this case, it was not disputed that she did this) or was involuntarily intoxicated (i.e. forced to become intoxicated or given something which would cause intoxication without her knowledge) is of no moment.

The Appellate Division next considered the level of intoxication necessary to establish mental incapacity, or an inability to consent.  The Appellate Division found that in order to establish this, “[a]n alleged SASPA victim must prove intoxication to such a degree that her faculties were prostrated to the point of being incapable of consenting to the sexual encounter,” which may be established by a preponderance of the evidence.

Undoubtedly, the Appellate Divisions’ examination of these issues provides some important clarification.  However, when considering the required proofs, it is all too clear that in many cases, the ability to establish these facts by a preponderance of the evidence will often  come down to the comparative credibility of the parties and their respective versions of events, as it did in this case where the trial judge believed both parties’ recitations of the events of the night in question to be “equally plausible.”

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or