Sexual Assaults and Restraining Orders (Part 4)

by | Feb 5, 2019 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The appellate panel continued: In a similar context, in D.C. v. F.R., we concluded the PDVA applied prospectively, not retroactively. In 1994, the PDVA’s definition of “victim of domestic violence” was expanded to include persons subjected to violence by persons he or she dated. Id. at 597. D.C. involved domestic violence that occurred in 1993 in a dating relationship, prior to the amendment going into effect. Id. at 598-99. We held instances of domestic violence that occurred before the amendment was passed were not covered by the PDVA, but an act that occurred in 1994 was grounds for entry of an order. Id. at 607.

The text of SASPA makes no mention of retroactivity and our review of SASPA’s legislative history reveals no suggestion retroactive application was intended. To the contrary, the Legislature took a distinctly prospective approach by providing SASPA would not “take effect until the 180th day following enactment.” L. 2015, c. 147, § 11. There is nothing to suggest “retroactive application may be necessary to make the statute workable or to give it the most sensible interpretation.” Gibbons v. Gibbons (1981). Nor is SASPA curative. “To be ‘curative,’ a statutory provision must be ‘designed to remedy a perceived imperfection in or misapplication of a statute.'” An amendment is curative if it does ‘not alter the act in any substantial way, but merely clarifies the legislative intent behind the previous act.'” “Generally, curative acts are made necessary by inadvertence or error in the original enactment of a statute or in its administration.” Here, the statute was enacted to expand remedies, not correct specified defects.

Furthermore, in this case, the parties did not expect SASPA to apply retroactively. Plaintiff’s SASPA application listed defendant’s acts of harassment and intimidation, but not an act or attempt of physical contact. Because of his 2005 guilty plea, defendant was subject to conditions of parole supervision for life and a no-contact order, but he had no reason to expect a future, collateral consequence of his crime.

Therefore, the court erred in concluding defendant’s 2005 sexual assault served as the predicate act for a SASPA order. Defendant’s actions in the convenience store were not acts or attempts at nonconsensual sexual contact with plaintiff. Thus, we are constrained to reverse. We need not reach defendant’s constitutional arguments under the ex post facto clause for the proper disposition of this matter.

The Court provided a great deal of analysis with regard to whether SASPA should be applied retroactively or prospectively. Most if it seems unnecessary in light of the fact that the Legislature explicitly stated that SASPA would not take effect until six months after its enactment.