Consent as a Defense to a Final Restraining Order (Part 3)

Judge Ryan continued: Under the circumstances, especially in light of the history between the parties, the court concludes the proofs are in equipoise as to whether defendant committed a simple assault or whether plaintiff consented to bodily injury that included a punch. N.J. Div. of Youth & Family Svcs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (“Under the preponderance standard, ‘a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'”) (quoting Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006)). See also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 5a on N.J.R.E. 101(b)(1) (2017). For the same reasons, the proofs are in equipoise as to whether defendant had a “purpose to harass” or reasonably believed plaintiff consented to offensive touching.

Despite these findings, the court concedes the ruling is a close call as to whether defendant’s decision to elevate the “rough sex” to a punch was appropriate. For that reason, the court proceeds to analyze whether a final restraining order is necessary under the two-step analysis of Silver, 387 N.J. Super. at 125.

Commission of one of the enumerated acts of domestic violence, without more, does not require the issuance of an FRO; the judge must conduct a “two-step analysis” of a plaintiff’s claim. N.T.B, 442 N.J. Super. at 216. Thus, the question in the second step is whether an FRO is “necessary to prevent further abuse.” J.D., 207 N.J. at 476.

There is a lack of history of domestic violence between these parties. The complaint contained allegations of a prior history, but plaintiff’s testimony never included any prior history of violence. There is no proof of prior threats, harassment or abuse. Likewise, there is no evidence of an immediate danger to persons or property. Further, the “history” between the parties establishes a pattern and practice of agreeing to “rough sex,” without objection, rather than a history of abuse. The context of their relationship militates against a finding an FRO is necessary.

The court’s opinion highlights the importance of having a capable attorney in your corner in court. The plaintiff may have testified credibly about a prior history of abuse and the result may have been different if she were prompted to do so by someone familiar with the domestic violence statute and case law.