Sexual Assault Survivor Protection Act (Part 2)

The Appellate Division continued in relevant part: Our emphasis on the absent comma may sound like a hyper-technical way to construe statutes. It isn’t. Our courts have applied this tenet time and again in construing legislation. See New Jersey Bank v. Palladino (1978) (holding, in a similar circumstance, that if “the Legislature had intended otherwise, it would have inserted a comma after” the last prior antecedent); Morella v. Grand Union/New Jersey Self-Insurers Guar. Ass’n (App. Div. 2007) (holding that “the use of a ‘comma’ to separate a modifier from an antecedent phrase indicates an intent to apply the modifier to all previous antecedent phrases”); Gudgeon v. Cty. of Ocean (App. Div. 1975) (holding that “where a comma is used to set a modifying phrase off from previous phrases, the modifying phrase applies to all the previous phrases, not just the immediately preceding phrase”); N.J. Ins. Underwriting Ass’n v. Clifford (App. Div. 1970) (holding that “had the modifying phrase been intended to relate to more than its last antecedent, a comma could have been used to set off the modifier from the entire series”). The Legislature undoubtedly acted on the assumption that we would derive the intended meaning of the statute through application of this established doctrine. See, e.g., State v. Chapland (2006). So, we may confidently conclude the Legislature’s omission of a comma after “other substance” was intended to invoke the doctrine of the last antecedent in the construction of N.J.S.A. 2C:14-1(i), thereby conveying the Legislature’s intent that the last phrase would qualify only “other substance.” We thus hold that, in seeking relief under SASPA, an alleged victim may prove the lack of consent by proving a mental incapacity brought on by either voluntary or involuntary intoxication.

Judge Fisher had a detailed and technical analysis for what seems like a straightforward answer. An alternative holding would mean that anyone who chose to drink too much would be fair game for sexual assaults. A hangover is a far more appropriate punishment.