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.