Consent as a Defense to a Final Restraining Order (Part 2)

The Court continued: In theory, there may be a significant difference between an open hand slap to the face and a full-force closed fist punch to the jaw. Under the facts of this case, particularly based upon the court’s credibility determinations, there is little, if any, appreciable difference between a hard slap to the face and a tap to the jaw. With respect to consent to bodily harm, “the consent of the victim will preclude the infliction of the harm or evil sought to be prevented by the law.” Cannel, N.J. Criminal Code Annotated, cmt. 2 on N.J.S.A. 2C:2-10.

However, this incident should not be analyzed in a vacuum. Rather, the court must consider the history between the parties and “weight their entire relationship” as it can greatly affect the context of a domestic violence dispute. Cesare, 154 N.J. at 405. While not obligated to find a past history of abuse to enter an FRO, Cesare, 154 N.J. at 402, the parties’ history enables the court to better understand “the totality of the circumstances of their relationship . . . .” Kanaszka, 313 N.J. Super. at 607. There was no credible testimony by plaintiff regarding a history of violence. Instead, the undisputed historical recitation of the parties is a pattern and practice of consensual “rough sex.”

The complaint alleged defendant has a history of “verbally and emotionally abusing” plaintiff, including making fun of her weight, her family and career path, as well as calling her derogatory names. It would likely have made little difference if plaintiff testified about these allegations as “vulgar name-calling alone is not domestic violence.” R.G. v. R.G., 449 N.J. Super. 208, 226 (App. Div. 2017) (citing E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-83 (App. Div. 2011).

Judge Ryan should be commended for his thoughtful analysis in this case. The safe move in today’s social climate would have been to side with the complainant. Since both parties were pro se, meaning they were unable or unwilling to hire attorneys at the trial level, it is unlikely that either would have pursued an appeal. Therefore, it was very unlikely that the judge’s decision would be challenged to a higher court, let alone reversed.