Sexual Assaults and Restraining Orders (Part 2)

by | Feb 1, 2019 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The appellate panel continued: Signed into law on November 9, 2015, SASPA was intended by the Legislature to expand the remedies available to victims of sexual violence. Senate Judiciary Committee, Sexual Assault Survivor Protection Act of 2015, S. 2164-4078 (N.J. 2015) (hereinafter Senate Judiciary Report). Prior to SASPA, victims of sexual violence could only obtain a restraining order under the Prevention of Domestic Violence Act of 1991 (PDVA). However, the PDVA defined “victim of domestic violence” as: a spouse, former spouse, a person with whom the defendant had a child in common, or a person with whom the defendant had a dating relationship. This meant a person subjected to sexual violence in a random encounter or in less than a dating relationship had no way to obtain a restraining order. SASPA was intended to fill this void.

SASPA provides: Any person alleging to be a victim of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct, and who is not eligible for a restraining order as a “victim of domestic violence” as defined by [the PDVA], may file an application with the Superior Court alleging the commission of such conduct or attempted conduct and seeking a temporary protective order. A Superior Court judge can issue an emergency ex parte temporary protective order “upon good cause shown.” Within ten days, the trial judge can conduct a hearing and issue a final protective order if supported by a preponderance of the evidence. A final protective order requires a finding of nonconsensual sexual contact, penetration, or lewdness, and “the possibility of future risk to the safety or well-being of the victim.” Senate Judiciary Report.

As a practical matter, the aforementioned hearings almost never occur. That is because if there is an allegation of a sexual assault it will almost always be criminally prosecuted by the state as opposed to first being litigated by a private party. Therefore, the protective order is usually ordered as part of the resolution of the criminal case.