SASPA’s Consent Standard (Part 2)

The Court concluded with the following in relevant part: The language of N.J.S.A. 2C:14-16(b), further, is consistent with applying the standard set forth in M.T.S. In -16(b), the Legislature outlined several factors that courts were not permitted to use in denying relief under SASPA, including the alleged victim’s or defendant’s alleged intoxication. Indeed, with N.J.S.A. 2C:14-16(b), it appears that the Legislature certainly did not envision an alleged victim’s intoxication to serve as a hurdle in seeking a protective order.

The additional clauses in -16(b) — which prohibit denying relief based on a victim remaining in the location where the unwanted contact occurred or the absence of signs of physical injury — further support that interpretation. Like the proscription against considering intoxication, the prohibition of those additional outmoded considerations helps free the statute of the vestiges of a time when victims were presumed to lie about their lack of consent, were required to show that they had resisted to their utmost ability, and were required to “disclose the injury immediately, suffer signs of injury, and cry out for help” in order to be considered credible. The language in -16(b) undermines any notion that the Legislature intended alleged victims of sexual assault to be put on trial with the prostration of faculties standard, just as criminal defendants.

In 2021, we cannot and should not go back in time to a period when it was the norm to shame, blame, and prosecute victims. The prostration of faculties standard is and has only ever been applied to alleged criminals seeking to evade culpability by showing that they could not have formed the requisite mens rea for the offense charged. That concept has no place in our jurisprudence as applied to alleged victims of sexual assault seeking a protective order. We therefore remand the matter to the trial court for reconsideration of the final restraining order and whether the sexual activity was consensual or nonconsensual utilizing the M.T.S. affirmative consent standard.

The phrase “it appears the Legislature certainly did not” is somewhat contradictory. The word “appear” indicates some uncertainty. “Certainly” indicates the opposite.