Consent as a Defense to a Final Restraining Order (Part 1)

by | Dec 27, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On September 28, 2017, the Ocean County Superior Court Chancery Division, Family Part decided the case of T.M. v. R.M.W. This was a rare example of a pro se law division case becoming a published opinion. It involved an issue of first impression that was never decided by our Appellate Division or Supreme Court. The Honorable Guy P. Ryan, J.S.C. authored the opinion. The principal issue was whether the defendant could assert consent as a defense to assault and harassment at a final restraining order hearing when the plaintiff had agreed to engage in “rough sex,” but did not specifically agree to being punched with a closed fist.

Judge Ryan held in relevant part as follows: Defendant has the burden of establishing an affirmative defense by a preponderance of the evidence. N.J.R.E. 101(b); Clark v. Clark, 429 N.J. Super. 61, 78 (App. Div. 2012). Here, plaintiff consented to “slapping,” “choking” and “hair pulling.” Those acts likely caused bodily harm and, but for her consent, would constitute simple assault. She contends she drew “the line” at a closed fist punch. Defendant admits throwing one punch with a closed fist to plaintiff’s jaw and describes the same as a “tap.” Plaintiff never clearly described the so-called second punch alleged in her complaint and the court concludes there is insufficient proof of a second punch. While plaintiff denies consenting to the punch, she concedes the parties never expressly defined the limits of their agreement to engage in “rough sex.”

The court can clearly understand why elevating consensual rough sex from slapping, choking and hair pulling to a punch may potentially cross the line between the parties. However, plaintiff’s actions belie her claim of non-consent. Plaintiff admittedly continued to engage in voluntary sexual relations with defendant for another twenty minutes after the punch, despite claiming at trial to have been “shocked.” Defendant agrees plaintiff “objected” to the punch, but nevertheless continued with consensual sexual relations.

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred helped me in a civil matter and was very attentive to my needs and responsive to my emails. Also very detail-oriented and timely. Highly recommend.
Kristen C
Google star 1Google star 2Google star 3Google star 4Google star 5
I wholeheartedly recommend the legal services of Frederick Sisto. Mr. Sisto brings with him a wealth of knowledge, experience, and professionalism - qualities that make him highly effective at providing legal counsel.
John D
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto is very responsive, courteous, and he really knows what he's doing. I highly recommend Fred.
Kenneth L
Google star 1Google star 2Google star 3Google star 4Google star 5
Thank you Fred for all your hard work and communication through my case. I got into a situation and very fortunate to have had Fred help me resolve it. He gave me great options and advice on how he would handle the situation and the steps we needed to follow. Highly satisfied with my experience and would highly recommend. Thank you Anthony Zappulla
Anthony Z
Google star 1Google star 2Google star 3Google star 4Google star 5
Mr. Sisto was not only a knowledgeable and excellent lawyer, he was compassionate and understanding during this difficult time. I found Mr. Sisto to always be available and he services were affordable and effective. You will not find a better lawyer.
Joseph S
Google star 1Google star 2Google star 3Google star 4Google star 5
For the people. For the little guy My legal bully
Glennlykesmusic
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is a very competent attorney. He is knowledgeable, thorough, effective and possesses outstanding interpersonal skills. He provided excellent representation in my case and obtained a favorable outcome.
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
mr. fred sisto esq. was very professional, answered all questions i had, & made my husband & i feel more at ease about our criminal case.
Meridith T
Google star 1Google star 2Google star 3Google star 4Google star 5
Very helpful services provided, updates make people think...
Atlantic A
Google star 1Google star 2Google star 3Google star 4Google star 5
I have sought out Mr. Sisto for two traffic related cases. His hard work and dedication to getting results for me was very evident from the get go. He was very informative throughout the entire process of working on my cases and during the court sessions as well. Very professional and very friendly. If anyone in the area is looking for a very good and quality representation, Mr. Sisto is a go to.
Brett S