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.

There are numerous criminal acts addressed within the Prevention of Domestic Violence Act, which,if proven,can form the basis for the entry of a domestic violence restraining order.The crime of harassment  is one.  It is defined by New Jersey law as being committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person."  The person must have a "conscious objective" to harass the victim.

Actually proving a purpose to harass, however, can be harder than it seems.  For instance, I recently tried a Final Restraining Order hearing where the husband/alleged abuser admitted to calling his wife dozens of times after she had fled the home and he had obtained a bogus temporary restraining order against her.  His defense?  I was just trying to "get her back because I love her."  Despite the Prevention of Domestic Violence Act requiring a broad interpretation of its terms to protect victims, the trial court dissolved the wife’s TRO against the husband, finding that the husband lacked a purpose to harass despite admitting to everything that she alleged.  This despite an also undisputed prior history of domestic violence.

It was this oftentimes difficult "purpose" requirement that was recently addressed by the Appellate Division in R.P. v. Somerset, where the Appellate Division reversed a trial court’s implementation of a Final Restraining Order because of a misinterpretation of the law.  The trial court held that a specific intent to harass was not necessary in proving that harassment occurred.  The Appellate Division disagreed and reversed, finding that the "purpose" is an integral part of proving a harassment claim.  In its conclusion, it also found that there was no evidence of a purpose in the case at issue, especially in light of a lack of prior domestic violence by the alleged abuser.  This despite the fact that the primary incident involved the alleged abuser/ex-girlfriend showing up at the ex-boyfriend’s home when he arrived with his new girlfriend, pulling the new girlfriend from the car and assaulting her. 

Purpose is critical.  So is filling out a domestic violence complaint with as much relevant detail as possible.  Any victim will surely be grilled on the contents of the complaint, especially if there is anything missing or contradictory from testimony given.  Including details as to current and past incidents is of great importance.  Also, considering how difficult it may be to prove harassment, it is also recommended to check off a claim for harassment on the complaint form, as well as any other claim that may be proven by your facts, such as stalking, assault, terroristic threats, etc.