What do you do when sexually assaulted by an acquaintance that you may have the possibility of seeing again? Imagine a scenario where you are sexually assaulted by a work colleague or the victim of a date rape. Other than filing criminal charges, is there any recourse to protect you?
Many people are familiar with the NJ Prevention of Domestic Violence Act (NJSA 2C:25-17 et seq.) (“PDVA”) which is the law governing restraining orders in New Jersey. The PDVA was passed to protect victims of regular, repeated abuse at the hands of a spouse, significant other, or cohabitant. However, there needs to be that specific relationship to be eligible for protection. At the current time, there are currently 18 causes of action for a restraining order, including harassment, assault, terroristic threats, and the like. Sexual assault is one cause of action that can warrant a restraining order.
However, the PDVA does not provide protection to victims of sexual abuse at the hands of an offender with whom they do not have an established relationship. This could be someone who you met on a first date, a colleague, a neighbor, a college campus sexual assault. Under those circumstances, the protections of a restraining order under the PDVA are not available because there is no past or current relationship romantic relationship.
Accordingly, the New Jersey legislature passed the Sexual Assault Survivors Protection Act (“SAPSA”) in May of 2016. www.njleg.state.nj.us/2014/Bills/S3000/2686_I1.PDF. The intent of SAPSA was to provide for no contact orders for victims of this particular type of sexual assault who did not have a relationship with the perpetrator which would allow for a restraining order. It also provides a mechanism for the protection of a victim when there might not be a criminal charges pending which may not occur at all, or take time. This is extremely important because statistics indicate that (1) most victims of a sexual assault know their attacker, and (2) sexual assault is recognized as one of the most frequently committed violent crimes in the nation. SAPSA gives a vehicle by which a “no contact” order can be obtained regardless of what is occurring in criminal court.
Under SAPSA, the Court is granted the authority to enter both Temporary and Final Protective Orders to victims of “nonconsensual sexual contact, sexual penetration or lewdness, or an attempt at such an act.” The procedure differs slightly from obtaining a Temporary Restraining Order under the PDVA. A Temporary Restraining Order can be granted by going to the police department and the signing off on a temporary order by a municipal court judge on weekends, overnight or after regular court hours. A Temporary Protective Order can only be applied for at the county courthouse during regular court hours. The domestic violence unit at each court house will sit with a victim to help determine which protections are available to them. If a Temporary Protective Order under SAPSA is sought, it will then be heard that day, without the perpetrator present, by the Judge assigned to hear such matters.
In order to grant a Temporary Protective Order under SAPSA, the Court must find that the restraints are “necessary to protect the safety for and well-being of an alleged victim who has been subjected to prohibited contact.” This is done through the complaint and the testimony of the victim on an ex parte basis, and if the Court grants same, a date will be set for a Final Protective Order Hearing. This gives the alleged perpetrator notice and the ability to prepare a defense for the final hearing.
Additionally, such protections can be sought by a parent or guardian on behalf of a victim who is under the age of 18. This differs from relief under the PDVA which does not provide protection to a victim under the age of 18. One can imagine a circumstance where one parent applies for the Temporary Protective Order on behalf of a child when there has been an allegation of abuse by another family member.
The standard for a Final Protective Order is not unlike a Final Restraining Order. The Court will review the alleged act or acts to see if the prohibited contact occurred and whether a final order is necessary to protect the safety of the alleged victim from the future risk of harm.
If a Final Protective Order is entered, remember that this is not a criminal order. It is not a finding that a crime has been committed. Currently, SAPSA does not authorize the Court to remove firearms from the perpetrator, there is no finger printing and no fines. However, if there is a violation of a Final Protective Order, then the perpetrator can be charged with criminal contempt which then becomes a crime. If the assault occurred on a college campus, the perpetrator can be restrained from campus. The Court also has the authority to grant other relief if a Final Protective Order is granted, such as attendance at therapy, damages and counsel fees.
This is a very new statute, and this area of the law just starting to develop. There are not yet any reported cases on the topic. It is very important, if you are a victim seeking protection under the act, or such an order has been sought against you, to seek the assistance of counsel to navigate this new area of law. The attorneys at Weinberg & Cooper are here to help you.