Restraining Orders and Statutory Immunity (Part 1)

by | Oct 1, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On January 5, 2023, the Essex County Superior Court decided the case of E.W. v. W.M-H. The principal issue under N.J.S.A. 2C:25-29 concerned whether the domestic violence defendant could invoke statutory immunity to exclude his reports to DCPP regarding the plaintiff’s child abuse.

Judge Joshua Sanders wrote for the Court. Judge Sanders had a distinguished career as an appellate attorney for the Office of the Public Defender. He wrote for the Court in relevant part: Starting with the immunity statute at bar, the court concludes that the Legislature intended to protect children as a primary purpose in enacting the immunity statute and that the expansive use of the words and phrases “anyone,” “shall have immunity from any liability,” and “any such person” must be given their plain meaning and effect within the confines of the immunity statute.

Here, however, the court must harmonize the immunity statute with the Prevention of Domestic Violence Act. The PDVA is intended to assure victims of domestic violence the maximum protection from abuse the law can provide. New Jersey law has a strong policy against domestic violence. Because the PDVA is remedial in nature, it is to be construed liberally to achieve its salutary purpose. Cesare v. Cesare (1998). The Legislature, therefore, encourages broad application of the PDVA to confront the problem of domestic violence. State v. Harris (2012). Through this lens, the court looks at the application of the immunity statute in the realm of domestic violence.

While there is a credible theoretical argument that the Legislature made a policy choice to protect children over victims of domestic violence, the court cannot find any support in the legislative history of the immunity statute for that proposition. The immunity statute was enacted in 1974 to further the “legislature’s paramount consideration of protecting children from injury or abuse.” State v. Snell, (App. Div. 1998). The Legislature enacted the PDVA in 1991, and that body expressly found and declared that domestic violence is a serious crime against society, that there is a positive correlation between spousal abuse and child abuse, and that children, even when they themselves are not physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. N.J.S.A. 2C:25-18. Given this proclamation, the court cannot find that the Legislature elected to protect children over victims of domestic violence, when, in fact, children themselves are also victims of domestic violence as expressly stated in N.J.S.A. 2C:25-18.

The “safe” thing for judges to do in restraining order cases is to grant orders liberally in favor of the plaintiff. Doing so is consistent with most of the binding precedent.