In a recent decision approved for publication, the New Jersey Appellate Division reversed a trial court’s findings that the Sexual Assault Survivor Protection Act, N.J.S.A. 2C:14-13 to -21 (SASPA), could afford protection to victims of sexual assault whose attacks took place prior to the effective date of the Act in 2015.  In so holding, the court reversed the entry of a final protection order to a victim of sexual violence, who was assaulted in 2005, ten years prior to the enactment of SASPA.

The case of R.L.U. v. J.P. illustrates this principle.  In this case, the defendant pled guilty to endangering the plaintiff in 2005, when she was eleven years old.  He was sentenced to three years of jail time and parole for life.  In 2017, he interacted with the plaintiff at the convenience store where she worked and verbally threatened her.  A few days later, he appeared at the glass window of the plaintiff’s job and stared at her for five seconds before walking away.  The plaintiff applied for a temporary order of protection pursuant to SASPA.  A final protective order was then entered, after a hearing at which the trial court heard credible testimony that the defendant had intercourse with the plaintiff in 2005.  Relying upon that assault as the predicate act, the trial court entered a final order of protection pursuant to SASPA.

The Appellate Division reversed, albeit unwillingly, finding it was “constrained” to hold that SASPA was not intended to be applied retroactively.  Explaining the history and purpose of SASPA, the Court identified its purpose to extend protection from domestic violence to those individuals who do not meet the requirements of the Prevention of Domestic Violence Act (PDVA), but are victims of sexual violence.  The PDVA is the primary avenue by which an individual can obtain a protective (otherwise known as restraining) order in New Jersey.  However, to qualify as a “victim” under the PDVA, one must be a spouse, former spouse, co-parent, or person with whom the defendant had a dating relationship.  Accordingly the PDVA does not protect persons subject to sexual violence in a random encounter or in less than dating relationship.

To bridge this gap, SASPA provides that any person alleging to be a victim of nonconsensual sexual contact, sexual penetration or lewdness (or an attempt thereof) who is not a protected victim under the PDVA, may apply for a protective order under SASPA.  However, the entry of a final protective order under SASPA requires a finding of nonconsensual sexual contact, penetration or lewdness and the possibility of future risk to the safety or well-being of the victim.  Importantly, words, threats or harassment is not enough.

Here, the trial court relied upon the predicate act of intercourse with the plaintiff in 2005.  The appellate court reversed, finding that this act could not constitute the predicate act as it occurred prior to SASPA’s enactment in 2015.  The court relied upon the absence of any legislative intent that SASPA was designed to apply retroactively and the fact that the PDVA is similarly applied prospectively.

It is important to understand the different laws which protect victims of domestic violence and know that SASPA is a fairly new law which broadens the category of victim who may seek protection from such acts of abuse.  However, victims whose offenders are more akin to a stranger must be cognizant of the durational limits imposed by SASPA.  That being said, any new acts of sexual violence may give rise to a basis for a protective order under the Act and anyone who is unfortunately a victim of such violence should be aware of the legal rights and protections to which they are entitled.

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Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

In August 2015, the New Jersey Legislature formally amended the Prevention Against Domestic Violence Act (N.J.S.A. 2C:25-19(a)) to include the predicate act of criminal coercion as a fifteenth form of domestic violence (in addition to: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking, all of which are as defined under their respective criminal statutes).

By way of background, in order to obtain a restraining order under the NJ Prevention Against Domestic Violence Act, the plaintiff/victim must have a qualifying relationship with the defendant, must prove that one or more of the (now) 15 qualifying “predicate” acts of domestic violence was perpetrated against you, and  must also show that there is a continuing need for protection based on the facts of your case.  The addition of criminal coercion as a predicate act opens an additional avenue by which victims can seek to obtain protection under the Act.

Criminal coercion is defined as a threat made to unlawfully restrict freedom of action, with a purpose to coerce a course of conduct from a victim which defendant has no legal right to require, including threatening to:

  1. Inflict bodily injury on anyone or commit any other offense;
  2. Accuse anyone of an offense;
  3. Expose any secret which would tend to subject any person to hatred, contempt or ridicule or to impair credit or business repute;
  4. Take or withhold action as an official or cause an official to take or withhold action;
  5. Bring about or continue a strike, boycott or other collective action except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the defendant acts;
  6. Testify or provide information or withhold testimony or information with respect to another person’s legal claim or defense;
  7. Perform any other act which would not in itself substantially benefit the defendant but which is calculated to harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

coercion graphic

A recent opinion penned by Judge Jones, J.L. v. A.C. specifically addressed the first category of criminal coercion.  In that case, Judge Jones found that the defendant had criminally coerced the plaintiff into meeting with him, at which time he brutally beat her, by threatening the safety of her child if she refused to meet with him as he demanded.  As Judge Jones notes in his opinion, the NJ Prevention Against Domestic Violence Act has been criticized for its failure to provide protection to children because the Act only extends protections to victims who are over the age of 18 (except in cases where the relationship between the victim and defendant is a dating relationship).  Thus, Courts have typically denied relief to plaintiffs who try to obtain restraining orders for acts of violence committed against their children, rather than against them personally.

The major takeaway from this decision?  As a parent, it seems that you can definitively obtain protection under this Act where the defendant coerces a course of conduct from you by threatening to inflict bodily injury or commit an offense against your child.  It would also seem that this could extend to threats against anyone else in the plaintiff/victim’s life, including a boyfriend or girlfriend, co-worker, friend, or other family member.  However, there are limits.  Although Judge Jones’s opinion emphasizes that the new predicate act of criminal coercion fills in the gap where there was no way to obtain a restraining order for threats of violence toward a child or third party, it is important to note that there must also be “purpose to coerce a course of conduct” from the plaintiff him/herself.  A threat to harm a child or third party is not enough; that threat must cause the victim to engage in a particular course of conduct.  In J.L. v. A.C., that course of conduct was the act of meeting with the defendant, which the victim would not have done but for the threat to her child.

Additionally, it is vital to remember that the restraining order is still going to be between the plaintiff and the defendant – NOT between the defendant and the third party against whom a threat has been levied.  With that said, the court has always been empowered to issue a final restraining order that includes a victim’s family members as additional protected persons.  As an important practice tip, if you are an attorney or a self-represented party seeking a restraining order based upon criminal coercion that includes a threat to inflict bodily injury or commit an offense against a third party, it is imperative that you seek to include the threatened third party as a protected party on any final restraining order issued by the Court.


 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 jdiamond@foxrothschild.com.

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "The Dangerous Trend in Electronics" on that blog.

To read the complete post, click here.

The post, among other things, discusses how people can be bullied by their spouses and significant others by the use of emails and text messages. 

More and more, we are seeing emails and text messages attached as exhibits to motions and as evidence at domestic violence hearings and divorce and custody trials.  As one of my adversaries likes to say, the "E" in email is for eternal.  Put another way, when a person types and sends and email or text message, they create a piece of evidence that can be used against them.  While most of the emails and texts sent each day are benign, more and more we see people act extremely inappropriately using these methods.  Perhaps people are emboldened to be more brash because the communication, while direct, is not face to face.  As such, it seems that almost every week I an suggesting that an email communication be toned down because they may be too aggressive.  I am also telling people to limit the email discussions to factual and/or logistical discussions and not get into the nonsense, even if their spouse is doing so.

I have a case now where we have used a spouses emails against him and yet he continues with his aggressive, belittling and/or outrageous emails.  While this will ultimately provide a treasure trove of information if there is a trial, it also needlessly drives of the hostility and legal fees.  In another recent matter, a spouse was trying to use emails to drive a wedge between his wife and counsel. 

The bottom line is twofold:  (1) no one deserves to be bullied, even via email and text message, and the recipient of this type of abuse should take all necessary steps at self-protection and (2) litigants going through a divorce should be very careful about how they treat the other party in emails and text messages.

A victim of domestic violence is often subjected to a life of terror and fear that her abuser will be around the next corner. The New Jersey Appellate Division has recently taken an important step in  efforts to protect the future of victims of domestic violence. In a case only referred to by its initials, the court relaxed the rule providing for the publication of an official name change. Usually, when an individual in New Jersey wishes to change his or her name, a notice must be published in a newspaper to put the "world" on notice. The reasoning behind this is that creditors and others will aware of a change as it is unlawful for an individual to change their name for the purpose of avoiding creditors, to avoid criminal prosecution, or for fraudulent reasons. The records of a name change application are generally available to the public.

In the case of The Application of E.F.G. to Assume a New Name , the Plaintiff had been a victim of long term, vicious domestic violence. Court records, police records and  her medical records including photographs demonstrated that her abuser had subjected her to life threatening violence and that there was a significant risk that he would cause additional harm in the future.

Wishing to begin a new life of safety away from her abuser, the Plaintiff sought to take a new name. However, she asked that she not be subject to the usual publication requirement and that the record of her application be sealed. She made this request in an effort to prevent her abuser from determining her new name and address. The Court noted the stated public policy of the New Jersey Legislature that “it is the responsibility of the courts to protect victims of domestic violence…by providing long term civil and criminal remedies…that are available to assure the safety of the victims and the public” Also, the Court echoed the words of the New Jersey Supreme Court in the case of Brennan v. Orban, 145 N.J. 282 (1996) when it said that “we believe that there is no such thing as an act of domestic violence that is not serious.” 

The Court  found that when faced with such a request, a judge must undertake an analysis of the facts and when an applicant has demonstrated a true and justifiable concern for her (or his) personal safety as a result of a history of abuse, that judge may relax the rules as necessary. In this case, the court determined that if it did not relax the rules, and if it forced the victim to publish her application, she would be denied “the one avenue to obtain peace in her life, and the opportunity to live without fear.”