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.