NJSBA Family Law Section

I posted about an almost identical case about a year ago that very nearly went to trial -- settled on day of trial after prepping and assembling 'props' and blog postings from plaintiff we were going to bring. My case was absent the punching, but the issue was the interplay between DV and proofs on, shall we say, very blurred lines on consent being the basis of a sexual relationship (domination and submission issues). Apparently the legal theory discussed last year would've prevailed (and it would have made one very interesting trial). A bit surprising that these parties apparently had this relationship going since they were 15 and 17.

My posting last year generated a great number of responses (on and off list), so I figured I'd share this here since there's apparently interest in the topic:

Decision Summaries
from the New Jersey Judiciary - October 23, 2018
APPROVED FOR PUBLICATION
FAMILY LAW
20-4-7351 T.M. v. R.M.W., N.J. Super. Ch. Div. (Ryan, J.) (22 pp.) (Sept. 28, 2017) Plaintiff filed a domestic violence civil complaint against defendant, alleging predicate acts of assault and harassment. As her jurisdictional ground, plaintiff asserted that she and defendant had a "dating relationship", although in her complaint plaintiff alleged she and defendant had a sexual relationship over the past eight years. Plaintiff alleged that she invited defendant over and that during "consensual rough sex" defendant told her he hated her and punched her in the face. Plaintiff alleged that she agreed to "consensual rough sex" but did not consent to being punched. Plaintiff acknowledged that the parties never formalized the limits on the use of force during their sexual encounter. Plaintiff testified that she was "afraid of defendant's impulsivity." Defendant admitted to plaintiff's allegations but asserted that when he left plaintiff's home on the night of the subject incident the parties had an agreement to continue sexual relations but not to employ the kind of force used by defendant. Defendant disputed the need for an FRO, asserting that he did not go to plaintiff's home unless invited. The court found defendant's testimony entirely credible but found plaintiff less credible concerning the number of times defendant punched her along with her allegations of prior incidents of domestic violence by defendant. The court ruled that the parties' sporadic sexual relationship could be construed as a "dating relationship" as they shared intimate and highly personal encounters with one another on multiple occasions; the court declined to hold the parties to "traditional" and "observable' indicia of dating. But the court declined to enter a FRO under a consent defense, finding that the parties never expressly defined the limits of their "rough sex" and that plaintiff continued with sexual relations after defendant's punch. Thus, the court could not find whether defendant believed plaintiff consented to offensive touching or had a "purpose to harass." (Approved for Publication)<x-tab>        </x-tab>


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- Dave

David Perry Davis, Esq.
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NOT TO BE PUBLISHED WITHOUT
THE APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
OCEAN COUNTY
CHANCERY DIVISION, FAMILY PART
DOCKET NO. FV-15-0506-18
T.M.,
Plaintiff,
v.
R.M.W.,
Defendant.
Decided: September 28, 2017
T.M., plaintiff, pro se.
R.M.W., defendant, pro se.
RYAN, G. P., J.S.C.
In this domestic violence case, the court addresses two legal issues of
first impression capable of repetition based upon the ever-changing dynamics
of interpersonal relationships. First, the court analyzes whether a plaintiff can
qualify as a "victim of domestic violence" based upon a "dating relationship"
which involves consensual, but sporadic, private sexual relations between
APPROVED FOR PUBLICATION
October 23, 2018
COMMITTEE ON OPINIONS
2
adults with few, if any, of the traditional elements of a dating relationship set
forth in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003).
Second, the court addresses whether a defendant may assert the defense of
consent, N.J.S.A. 2C:2-10, to allegations of simple assault, N.J.S.A. 2C:12-
1(a)(1), and harassment by offensive touching, N.J.S.A. 2C:33-4(b), when the
plaintiff admittedly agreed to "consensual rough sex" with defendant. Based
upon the facts and circumstances of this case, the court answers both questions
in the affirmative.
I.
Plaintiff is a twenty-two year-old female who has known defendant, a
twenty-five year-old male, since high school. On September 20, 2017,
plaintiff filed a domestic violence civil complaint under the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging predicate
acts of assault and harassment. A temporary restraining order (TRO) was
issued by a Superior Court Judge after plaintiff appeared before a domestic
violence hearing officer. As part of her jurisdictional grounds, plaintiff
alleged she and defendant "have had a dating relationship" although she later
testified she selected that choice because it was the only option potentially
applicable. In her complaint, plaintiff alleged she has "had a sexual
relationship with defendant that has lasted [for] 8 years." The complaint
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alleges that on September 18, 2017, defendant came to plaintiff’s home "after
she invited him over" and "during the act" of "consensual rough sex" defendant
told plaintiff that he hated her and "punched her in the face with a closed fist."
After plaintiff questioned him about the punch, plaintiff alleges defendant
"laughed and punched her again." The allegations of the complaint include a
specific admission by plaintiff that she agreed to "have consensual rough sex"
with defendant but "him punching her was not part of it."
Both parties appeared for a final hearing on September 28, 2017. After
being advised of their right to counsel and the consequences of a final
restraining order, the parties elected to represent themselves and proceed to
trial. Both parties testified and cross-examined each other, but called no other
witnesses.
The testimony was in agreement that the parties’ sexual relationship
began when plaintiff was fifteen years of age and defendant was seventeen.
According to plaintiff, they had sex "more frequently" during the first three
years of their relationship, roughly between the time plaintiff was fifteen to
eighteen years old, followed by a three-year absence of sexual relations. For
approximately the last year or so, the parties’ relationship has been limited to
private encounters involving "consensual rough sex."
4
The court questioned plaintiff on the six factors of Andrews,1 363 N.J.
Super. at 260, to determine whether a dating relationship existed. Plaintiff’s
testimony established the following: there was little interpersonal bonding; the
relationship was mostly based upon sporadic and casual sexual encounters; the
relationship, while not seen by either as "dating," lasted eight years; the
frequency of the encounters varied from "more frequently" while in high
school, to a three-year period of no sexual relations, to approximately once
every three months for the last year or more; neither party had any ongoing
expectations with respect to the future or permanency of the relationship; the
parties did not demonstrate an affirmation of their relationship to others, nor
did they hold themselves out to friends and family as "boyfriend and
girlfriend." Thus, except for the eight-year duration, most of the Andrews
factors weigh against a finding of a "dating relationship." However, the sixth
Andrews factor ("any other reasons unique to the case that support or detract
1 Those factors are: (1) Was there a minimal social interpersonal bonding of
the parties over and above a mere casual fraternization? (2) How long did the
alleged dating activities continue prior to the acts of domestic violence
alleged? (3) What were the nature and frequency of the parties' interactions?
(4) What were the parties' ongoing expectations with respect to the
relationship, either individually or jointly? (5) Did the parties demonstrate an
affirmation of their relationship before others by statement or conduct?
(6) Are there any other reasons unique to the case that support or detract from
a finding that a "dating relationship" exists? Andrews, 363 N.J. Super. at 260.
5
from a finding of a 'dating relationship'") requires further analysis based upon
the ever-changing limits of interpersonal relationships.
Plaintiff testified, and defendant agreed, that she texted defendant during
the late night hours of September 17 into September 18, 2017, to come to her
house for sexual relations.2 Defendant arrived at plaintiff’s home sometime
after 1 a.m. Shortly thereafter, in plaintiff’s words, the parties engaged in
"consensual rough sex." When asked to describe her understanding of the
parameters of rough sex, plaintiff testified she consented to "slapping," "hair
pulling" and "choking" but she did not consent to being punched "with a
closed fist." After several minutes of consensual sexual relations, plaintiff
testified defendant punched her in the left side of her jaw with a closed fist.
She testified she "was in shock" and "can’t remember what it felt like."
Nevertheless, she did not stop the encounter. She testified, "we continued to
having sex. I was in shock . . . I kept going." She estimated the sexual
relations continued for another twenty minutes.3 After the sexual relations
ended, plaintiff testified she "repeatedly brought up that he had punched [her]
in the face." Plaintiff claimed defendant "brushed it off" and attempted to
2 Neither party provided copies of any text messages, but both testified their
understanding and expectation was to have "rough sex."
3 During her initial testimonial description of the incident, plaintiff only
briefly mentioned the second punch alleged in the complaint.
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sleep over but she objected and he left her home between 2:30 and 3 a.m.
When asked to further amplify on the extent of her agreement to have
"rough sex," plaintiff testified she "consented to [an] open palm, but [she] did
not consent to [a] closed fist." However, she admitted the parties never
verbalized or delineated the limits of use of force during relations.
The complaint included allegations of a past history of domestic
violence involving vulgar name calling and verbal abuse. When asked about
the history, plaintiff did not detail those allegations in her testimony. Instead,
she indicated she and defendant had previously seen each other in June 2017
but it involved only "kissing," not sexual relations. She further testified
defendant, during the summer of 2017, had come to her place of employment,
a local retail establishment that sells adult products and novelties. She is
concerned he will return to her place of employment.
As to the need for a final restraining order (FRO), plaintiff testified she
is "afraid of defendant’s impulsivity" and she wants "other women protected"
from him.
Defendant agreed with most of plaintiff’s recitation of the history of
their relationship, although he described it simply as they "would meet up and
have sex" and not see each other for up to six months in between encounters.
Contrary to plaintiff, defendant testified the parties did have sexual relations in
7
June 2017 and, about a month later, plaintiff "messaged" the girlfriend of
defendant to say he had "cheated on her." On re-direct, plaintiff conceded she
did contact defendant’s girlfriend and said words to that effect. Sometime that
August, defendant went to plaintiff’s place of work to question her about
contacting his girlfriend. Defendant said plaintiff told him to leave or she
would call the police. Both parties agree defendant left voluntarily and has not
returned to plaintiff’s work.
As to the events of the early morning hours of September 20, defendant
testified plaintiff texted him while he was at work at a local bar . Thereafter,
he went to plaintiff’s house "to have sex." In his words, they "had a
conversation for a few minutes . . . we were having sex for about 20 minutes
. . . I did hit her. . . it was playful . . . we have had rough sex . . ." for years.
The defendant felt the parties had an agreement to be rough and suggested that
it is not as if they have written contracts to define their limits. Defendant
admitted that after his punch, "she objected to being hit" but then they "had
more sex." He testified "[i]t was a closed fist and a tap on the jaw . . . [he] was
not intending to harm her . . . there is a fine line to how rough [they] get."
When asked to describe that "fine line," defendant testified "[t]here is
definitely hitting and slapping and choking." After concluding their sexual
relations, defendant testified they had a conversation about "it," referring to
8
the punch. He told plaintiff "it was playful." Defendant promised "not to do it
again." However, when he left her home that night, he felt they "had an
agreement not to do that again" but would continue to otherwise have rough
sex.
Defendant disputed the need for the entry of a FRO, claiming he never
goes to plaintiff’s home unless invited and, other than the one time in August
to question plaintiff about contacting his girlfriend, defendant has only gone to
plaintiff’s place of employment to make "a purchase." Plaintiff admitted
defendant has not come to her home uninvited.
Plaintiff was initially credible, principally because of her candor with
regard to the scope of her consent with defendant. However, her credibility
waned. She was inconsistent as to whether defendant actually punched her a
second time. Further, plaintiff’s testimony regarding a prior history of
domestic violence was completely inconsistent with the allegations in her
complaint. In fact, plaintiff’s testimony established there was no prior history
of violence.
Defendant was a credible witness. He did not minimize his actions. The
court found defendant’s admission of a single punch to be believable. The
balance of his testimony was candid and straightforward. The defendant
maintained eye contact. Defendant’s description of the parties’ encounter in
9
June, as well as his visit to her place of employment in August, was far mor e
credible than plaintiff’s testimony.
II.
"Victim of domestic violence" is defined in the PDVA. N.J.S.A. 2C:25-
19(e). Among other protected persons, a victim "includes any person who has
been subjected to domestic violence by a person with whom the victim has had
a dating relationship." Ibid. Courts have long observed the legislature left the
term "dating relationship" undefined in the PDVA. Andrews, 363 N.J. Super.
at 257. Judge Hogan’s opinion in Andrews notes the inclusion of the word
"relationship" rather than simply "dating" is in concert with the other persons
protected under the PDVA, as all classes of persons who have "a continuing,
frequent and observable relationship with one another." Ibid.
A mere quantitative analysis of the Andrews factors to the facts of this
case could lead a court to conclude the parties did not have a dating
relationship. To do so, however, would be to ignore the remedial purpose of
the PDVA to protect victims to the greatest extent possible. Tribuzio v. Roder,
356 N.J. Super. 590, 596 (App. Div. 2003). The PDVA itself announces that
its purpose is "to assure the victims of domestic violence the maximum
protection from abuse the law can provide." N.J.S.A. 2C:25-18. In Andrews,
363 N.J. Super. at 259-60, Judge Hogan noted a trial court should consider, "at
1 0
a minimum" the six enumerated factors and "one or more of the factors may be
more or less relevant in any given case depending on the evidence presented."
The list is, therefore, non-exclusive. The sixth factor ("any other reasons
unique to the case that support or detract" from finding a dating relationship)
is, itself, expansive and invites a court to consider the realities of a relationship
between parties. Therefore, a qualitative analysis of the Andrews factors is
more appropriate than a numerical analysis.
In J.S. v. J.F., 410 N.J. Super. 611 (App. Div. 2009), the defendant
claimed the plaintiff was a "paid escort" rather than a date. He asserted his
interactions with the plaintiff occurred when he frequented local clubs where
the plaintiff worked as a dancer. In affirming the trial court’s finding of a
dating relationship, the Appellate Division noted, "although Andrews suggests
some useful factors, courts should vigilantly guard against a slavish adherence
to any formula that does not consider the parties' own understanding of their
relationship as colored by socio-economic and generational influences." J.S.,
410 N.J. Super. at 616. The J.S. court rejected "the contention that a
relationship which includes a payment of consideration for the other's time
precludes the finding of a dating relationship." Id. at 615. There, however,
despite meeting at a local dance club and evidently exchanging payment, the
defendant later invited the plaintiff to his parents’ home for Thanksgiving
1 1
dinner. The trial court also found credible the plaintiff’s testimony that the
defendant took her to his home, introduced her to his family, went out in
public with her as well as spent weekends with her. Id. at 617. Regardless of
any initial "payment," the relationship of the parties in J.S. progressed to one
where several of the Andrews factors were, in fact, present.
While the J.S. court declined to endorse the Andrews test, a subsequent
appellate decision has done so. In S.K. v. J.H., 426 N.J. Super. 230, 236 (App.
Div. 2012), the Appellate Division concluded "that Andrews poses the
appropriate questions to be considered when the existence of a dating
relationship is disputed while recognizing that, if applicable, other factors
unique to the parties should also be weighed." There, the plaintiff and the
defendant were on a trip abroad with dozens of others. Id. at 233. After
sitting and talking in a bar for a few hours, and dancing briefly, the defendant
walked with the plaintiff and one of the plaintiff’s friends back to her room.
Ibid. When she rebuffed the defendant’s attempt to kiss her, the defendant
brutally assaulted plaintiff. He was later convicted of assault. Ibid. The
Appellate Division noted the parties in S.K. may very well have viewed the
encounter "as a date" but, in reversing the entry of a final restraining order, the
court found applying the PDVA to a single date would "give too little weight
to the word 'relationship.'" Id. at 239.
1 2
In this matter, the parties never progressed to a relationship that was
recognized in public or by others. It was neither open nor "observable."
Arguably, the parties had a sexual relationship which they attempted to keep
secret. Certainly, defendant sought to conceal his relationship with plaintiff
from his actual girlfriend. Therefore, the question is whether a private
relationship of consensual, but sporadic, sexual encounters can be construed as
a "dating relationship" under the PDVA. This court concludes it can and
should be. Here, it is undisputed the parties engaged in intimate, physical and
sexual relations over the course of approximately eight years. Notably, there
is no authority which requires sexual relations between parties in order to
constitute a "dating relationship." To so require would diminish the
protections under the PDVA. While one date is clearly insufficient, S.K., 426
N.J. Super. at 229, there can be no dispute that parties who engage in several
public dates, hold themselves out to friends and family as dating and hope to
progress in their relationship likely qualify as having a dating relationship.
That hypothetical plaintiff would certainly qualify as a victim under the
PDVA, even though the defendant may not have entered the plainti ff’s home
or bedroom nor had sexual relations with her. It would be illogical to protect
that hypothetical plaintiff but deny this plaintiff "victim" status.
These parties engaged in a consensual, but sporadic, sexual relationship
1 3
for eight years. The defendant came to plaintiff’s bedroom on invited
occasions and shared intimate and highly personal encounters with her. As in
J.S., to slavishly adhere to traditional notions of dating would be to ignore "the
parties’ own understanding of their relationship . . . ." 410 N.J. Super. at 616.
For the courts to deny this plaintiff victim status could potentially been seen as
morally judging a plaintiff who chooses not to engage in a relationship with
"traditional" and "observable" indicia of dating. It would also be contrary to
the purposes of the PDVA to deny a long-term consensual sexual partner of the
protections of the act, especially when the alleged violence occurs in her home.
State v. Hoffman, 149 N.J. 564, 584 (1997) ("The scales of justice remind us
that the public as well as this victim have a right to feel safe when alone in
their own homes.") (quoting State v. Mosch, 214 N.J. Super. 457, 466 (App.
Div. 1986)).
In a footnote, the Andrews court left open the possibility of a "secret"
dating relationship. Andrews, 363 N.J. Super. at 260 n.3 ("There is certainly
the potential that individuals could be in a 'secret' dating relationship, in which
the parties intentionally go out of their way not to hold themselves out as a
dating couple, in which case the other factors would logically carry more
weight."). Here, factors (2) and (6) of Andrews carry significant weight. The
eight-year duration of their relationship, coupled with the intensity of their
1 4
intimate encounters, compels the court to recognize the parties as being in a
"dating relationship." It would be contrary to the purposes of the PDVA to
exclude a person in plaintiff’s shoes from victim status. A person engaged in a
secret intimate or sexual relationship with an abusive partner is just as
vulnerable, if not more so, than a person engaged in a traditional dating
relationship.
III.
Prior to granting an FRO pursuant to the PDVA, the judge must conduct
a "two-step analysis" of a plaintiff's claim. N.T.B v. D.D.B., 442 N.J. Super.
205, 216 (App. Div. 2015). "First, the judge must determine whether the
plaintiff has proven, by a preponderance of the credible evidence, that one or
more of the predicate acts set forth in N.J.S.A. 2C:25-19[(a)] has occurred."
Ibid. (alteration in original) (quoting Silver v. Silver, 387 N.J. Super. 112, 125
(App. Div. 2006)). If the plaintiff satisfies his or her burden, the court must
then determine "whether [it] should enter a restraining order that provides
protection for the victim." Silver, 387 N.J. Super. at 126. Our Supreme Court
has emphasized that an FRO should not be entered without "a finding that
'relief is necessary to prevent further abuse.'" J.D. v. M.D.F., 207 N.J. 458,
476 (2011) (quoting N.J.S.A. 2C:25-29(b)). Factors to be considered include:
(1) [t]he previous history of domestic violence
between the plaintiff and defendant, including threats,
1 5
harassment and physical abuse; (2) [t]he existence of
immediate danger to person or property; (3) [t]he
financial circumstances of the plaintiff and defendant;
[and] (4) [t]he best interests of the victim and any
child. . . .
[N.J.S.A. 2C:25-29(a).]
N.J.S.A. 2C:25-29(a) permits the introduction of evidence of the
"previous history of domestic violence." That history is admissible "[b]ecause
a particular history can greatly affect the context of a domestic violence
dispute," thus, "trial courts must weigh the entire relationship between the
parties . . . ." Cesare v. Cesare, 154 N.J. 394, 405 (1998). "A history of
domestic violence may serve to give context to otherwise ambiguous behavior
and support entry of a restraining order." J.D., 207 N.J. at 483. The judge
must construe any such acts in light of the parties' history to better "understand
the totality of the circumstances of the relationship and to fully evaluate the
reasonableness of the victim's continued fear of the perpetrator." Kanaszka v.
Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998); N.J.S.A. 2C:25-29(a)(1).
Here, plaintiff alleges defendant committed the predicate acts of assault
and harassment. A person commits a simple assault if he "attempts to cause or
purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A.
2C:12-1(a)(1). Bodily injury means "physical pain, illness or impairment of
physical condition." N.J.S.A. 2C:11-1(a). It is well-settled bodily injury can
1 6
occur from a slap in the face which causes a stinging sensation, State v.
Downey, 242 N.J. Super. 367, 371 (Law Div. 1988), as well as physical
discomfort and non-specific pain caused by a kick. State in the Interest of
S.B., 333 N.J. Super. 236, 243-44 (App. Div. 2000). Likewise, pain caused by
repeated strikes qualifies as bodily injury. State ex. rel. T.S., 413 N.J. Super.
540, 543 (App. Div. 2010). There is no doubt the actions of defendant in
slapping plaintiff with an open hand, pulling her hair and choking her likely
caused bodily injury. Plaintiff concedes she consented to that bodily injury.
Plaintiff asserts she did not consent to a punch with a closed fist.
Two days after the incident, plaintiff sought treatment at a local urgent
care center. She testified her jaw was bruised and painful. Discharge
instructions from the urgent care center were admitted without objection.
Those records showed plaintiff was diagnosed with a "jaw injury." Three
radiographic views of the mandible were taken and showed "[n]o acute
fracture. No dislocation." Further, the radiologist concluded, the "visualized
soft tissues [were] within normal limits." Plaintiff received no further
treatment. The court also admitted two photographs of plaintiff’s face , one
taken on the day of the incident and the other two days later. While plaintiff
testified she was bruised, the photographs were unremarkable for any bruising,
except perhaps barely perceptible discoloration. The trial occurred ten days
1 7
after the incident and the court could not observe any bruising on the
plaintiff’s face at that time. The defendant admits to striking the plaintiff with
one, self-described "playful," "tap" to the jaw. Based upon the lack of serious
injury, the court is convinced plaintiff sustained only bodily injury, not
significant or serious bodily injury, as those terms are defined in N.J.S.A.
2C:11-1(b), (d), as a result of both the consented to physical contact as well as
the disputed punch.
In addition, the defendant undoubtedly and admittedly engaged in
conduct which amounts to offensive touching under the harassment statute,
N.J.S.A. 2C:33-4(b),4 if done with a purpose to harass another. Subsection (b)
of the harassment statute provides a person commits harassment if, "with
purpose to harass another," he "subjects another to striking, kicking, shoving,
or other offensive touching or threatens to do so." Purposeful conduct or "with
purpose" is established if it is the defendant’s "conscious object" to engage in
such conduct or to cause such a result. N.J.S.A. 2C:2-2(b)(1).
But for plaintiff’s admitted consent to "rough sex," the elements of
simple assault and harassment by offensive touching could easily be found.
Consent is an affirmative defense under New Jersey’s criminal code, N.J.S.A.
4 The court concludes that subsections (a) and (c) of the harassment statute are
not applicable to the facts of this case.
1 8
2C:2-10. Specifically, consent to bodily harm is a defense pursuant to
N.J.S.A. 2C:2-10(b), which provides:
b. Consent to bodily harm. When conduct is charged to
constitute an offense because it causes or threatens bodily
harm, consent to such conduct or to the infliction of such
harm is a defense if:
(1) The bodily harm consented to or threatened by the
conduct consented to is not serious; or
(2) The conduct and the harm are reasonably foreseeable
hazards of joint participation in a concerted activity of a
kind not forbidden by law; or
(3) The consent establishes a justification for the conduct
under chapter 3 of the code.
Defendant has the burden of establishing an affirmative defense by a
preponderance of the evidence. N.J.R.E. 101(b); Clark v. Clark, 429 N.J.
Super. 61, 78 (App. Div. 2012). Here, plaintiff consented to "slapping,"
"choking" and "hair pulling." Those acts likely caused bodily harm and, but
for her consent, would constitute simple assault. She contends she drew "the
line" at a closed fist punch. Defendants admits throwing one punch with a
closed fist to plaintiff’s jaw and describes the same as a "tap." Plaintiff never
clearly described the so-called second punch alleged in her complaint and the
court concludes there is insufficient proof of a second punch. While plaintiff
denies consenting to the punch, she concedes the parties never expressly
defined the limits of their agreement to engage in "rough sex." The court can
1 9
clearly understand why elevating consensual rough sex from slapping, choking
and hair pulling to a punch may potentially cross the line between the parties.
However, plaintiff’s actions belie her claim of non-consent. Plaintiff
admittedly continued to engage in voluntary sexual relations with defendant
for another twenty minutes after the punch, despite claiming at trial to have
been "shocked." Defendant agrees plaintiff "objected" to the punch, but
nevertheless continued with consensual sexual relations.
In theory, there may be a significant difference between an open hand
slap to the face and a full-force closed fist punch to the jaw. Under the facts of
this case, particularly based upon the court’s credibility determinat ions, there
is little, if any, appreciable difference between a hard slap to the face and a tap
to the jaw. With respect to consent to bodily harm, "the consent of the victim
will preclude the infliction of the harm or evil sought to be prevented by the
law." Cannel, N.J. Criminal Code Annotated, cmt. 2 on N.J.S.A. 2C:2-10
(2016-2017).
However, this incident should not be analyzed in a vacuum. Rather, the
court must consider the history between the parties and "weight their entire
relationship" as it can greatly affect the context of a domestic violence dispute.
Cesare, 154 N.J. at 405. While not obligated to find a past history of abuse to
enter an FRO, Cesare, 154 N.J. at 402, the parties’ history enables the court to
2 0
better understand "the totality of the circumstances of their relationship . . . ."
Kanaszka, 313 N.J. Super. at 607. There was no credible testimony by
plaintiff regarding a history of violence.5 Instead, the undisputed historical
recitation of the parties is a pattern and practice of consensual "rough sex."
Under the circumstances, especially in light of the history between the
parties, the court concludes the proofs are in equipoise as to whether defendant
committed a simple assault or whether plaintiff consented to bodily injury that
included a punch. N.J. Div. of Youth & Family Svcs. v. N.S., 412 N.J. Super.
593, 615 (App. Div. 2010) ("Under the preponderance standard, 'a litigant
must establish that a desired inference is more probable than not. If the
evidence is in equipoise, the burden has not been met.'") (quoting Liberty Mut.
Ins. Co. v. Land, 186 N.J. 163, 169 (2006)). See also Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. 5a on N.J.R.E. 101(b)(1) (2017).
For the same reasons, the proofs are in equipoise as to whether defendant had a
"purpose to harass" or reasonably believed plaintiff consented to offensive
touching.
5 The complaint alleged defendant has a history of "verbally and emotionally
abusing" plaintiff, including making fun of her weight, her family and career
path, as well as calling her derogatory names. It would likely have made little
difference if plaintiff testified about these allegations as "[v]ulgar
name-calling alone is not domestic violence." R.G. v. R.G., 449 N.J. Super.
208, 226 (App. Div. 2017) (citing E.M.B. v. R.F.B., 419 N.J. Super. 177, 182-
83 (App. Div. 2011)).
2 1
Despite these findings, the court concedes the ruling is a close call as to
whether defendant’s decision to elevate the "rough sex" to a punch was
appropriate. For that reason, the court proceeds to analyze whether a final
restraining order is necessary under the two-step analysis of Silver, 387 N.J.
Super. at 125.
Commission of one of the enumerated acts of domestic violence, without
more, does not require the issuance of an FRO; the judge must conduct a
"two-step analysis" of a plaintiff's claim. N.T.B, 442 N.J. Super. at 216.
Thus, the question in the second step is whether an FRO is "necessary to
prevent further abuse." J.D., 207 N.J. at 476.
There is a lack of history of domestic violence between these parties.
The complaint contained allegations of a prior history, but plaintiff’s testimony
never included any prior history of violence. There is no proof of prior threats,
harassment or abuse. Likewise, there is no evidence of an immediate danger to
persons or property. Further, the "history" between the parties establishes a
pattern and practice of agreeing to "rough sex," without objection, rather than
a history of abuse. The context of their relationship militates against a finding
an FRO is necessary.
The court rejects plaintiff’s conclusory testimony regarding defendant’s
"impulsivity." It was unsupported by any facts. Plaintiff admitted she invited
2 2
defendant to her home on September 18.6 Both parties agree defendant has not
come to plaintiff’s home uninvited, a strong indication an FRO is not
"necessary" to protect plaintiff. No impulsive conduct of defendant was
established. Likewise, the court rejects plaintiff’s claim that "other women"
should be protected from defendant. The second prong of Silver mandates the
court consider "whether [it] should enter a restraining order that provides
protection for the victim." Silver, 387 N.J. Super. at 126 (emphasis added).
No case law or reading of the PDVA supports the entry of an FRO for the
protection of the general public or other persons with whom defendant may
come into contact. Moreover, the entry of an FRO in favor of a particular
plaintiff would not protect other third parties unrelated to the case in which the
FRO was entered.
Based upon all of the foregoing, the court dismisses the domestic
violence complaint and vacates the TRO.
6 The court does not deny plaintiff relief because she invited defendant to her
home for consensual sexual relations. She is deserving of victim status if
subjected to an act of domestic violence. But when considering whether a
restraining order is "necessary" under the second prong of Silver, the court
concludes plaintiff’s invitation to defendant is relevant and probative.