SASPA’s Consent Standard (Part 1)

by | Dec 8, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Fred-Sisto-Attorney-Criminal-DefenseOn September 28, 2021, the New Jersey Supreme Court decided the Gloucester County case of C.R. v. M.T. The principal issue under N.J.S.A. 2C: 14-14 involved the standard to apply in determining whether sex was consensual in determining whether to issue a Protective Order under the Sexual Assault Survivor Protection Act (SASPA).

Justice Pierre-Louis wrote for a unanimous Court in relevant part: In reviewing those principles and the history of sexual assault jurisprudence in New Jersey, we hold that the affirmative consent standard articulated in M.T.S. is the correct standard to be applied in determining whether sexual activity was nonconsensual under SASPA. In its holding, the Appellate Division found no reason not to apply the prostration of faculties standard, under which an alleged victim would have to bear the high burden of establishing that she was too intoxicated to consent. We disagree.

Under our statutes and case law, the standard for consent applicable to an alleged victim and the standard for an intoxication defense applicable to an accused criminal defendant are different. Given the history of sexual assault in the law, as painstakingly detailed in M.T.S., a holding that alleged victims of sexual assault seeking a protective order should be held to the same standard as criminal defendants seeking to assert a defense would, quite frankly, set our law back decades to a time when alleged victims were the ones essentially put on trial. Applying the prostration of faculties standard in determining whether sexual activity was consensual is simply inconsistent with the standard set forth in M.T.S.

The Appellate Division and the trial court’s heavy reliance on the criminal sexual assault statute, N.J.S.A. 2C:14-2, is misplaced. SASPA does not reference or incorporate the criminal statute at all. The Appellate Division conducted an extensive analysis of the provisions of the sexual assault statute that criminalize penetration of a victim whom the perpetrator knew or should have known was “mentally incapacitated” in determining that the prostration of faculties was the appropriate standard. But although SASPA is contained within the same chapter of the Code, SASPA makes no reference to the criminal statute and never once uses the term “mentally incapacitated” to describe nonconsensual sexual conduct. It is unlikely that the Legislature intended to incorporate the language of the criminal statute into SASPA, given the fact that it made no attempt to do so in drafting the plain language of the statute. And, as the recent revision to the sexual assault statute reveals, the Legislature was aware of the M.T.S. standard.

A three-judge appellate panel reached a different conclusion than the unanimous New Jersey Supreme Court. Presiding Judge Clarkson Fischer delivered the panel’s opinion that was reversed by the instant decision.