Sexual Assaults and Restraining Orders (Part 1)

On December 4, 2018, the Appellate Division decided the Bergen County case of R.L.U. v. J.P. The principal issue was whether the Sexual Assault Survivor Protection Act of 2015 could be used to impose a restraining order on a defendant based on conduct that occurred before the Act’s effective date.

Writing for a unanimous three-judge panel, Judge Whipple held in relevant part as follows: On appeal, defendant argues the Family Part judge erred by entering a SASPA order because SASPA requires a predicate act to have occurred after its enactment, not before. He argues the protective order imposed an ex post facto penalty and SASPA was unconstitutionally applied.

We are constrained to agree with defendant’s statutory interpretation argument and therefore do not reach his constitutional argument. SASPA cannot be used to impose a restraining order on defendant based on conduct that occurred before SASPA’s effective date. SASPA does not permit such retroactive application. We do not fault the good intentions of the Family Part judge; however, the court’s reliance upon the 2005 assault as a predicate for the 2017 order of protection was error.

We have a strictly limited standard of review from the fact-findings of the Family Part judge.” N.J. Div. of Youth & Family Servs. v. I.H.C. (App. Div. 2010). We defer to the factual findings of the Family Part judge because of her opportunity to make first-hand credibility judgments about the witnesses who appeared on the stand. N.J. Div. of Youth & Family Servs. v. M.C. III (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P. (2008)). However, we review questions of law de novo. Smith v. Millville Rescue Squad (2016).

A pro-law enforcement tilt and/or a contempt towards those subject to SASPA can be gleaned from the language of this opinion. Examples include “We are constrained to agree with defendant” and “We do not fault the good intentions of” the judge that misapplied the law to the facts of the case in a way that unduly infringed upon the defendant’s constitutional rights.