Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Are Victims Of Abuse Protected By New Jersey’s Sexual Assault Survivor Protection Act of 2015?

This article establishes the Judiciary’s procedures for implementation of the Sexual Assault Survivor Protection Act of 2015, L. 2015 c. 147 which goes into effect in New Jersey on May 9, 2016.  The new law sets forth the process available to litigants to apply for and the court to issue a Sexual Assault Protective Order.  Following please find this lawyer's  are elements of the new legislation:

Application for Temporary Protective Order:

1. 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” may file an application with the Superior Court pursuant to the Rules of Court alleging the commission of such conduct or attempted conduct and seeking a temporary protective order.

2. An application for relief may be filed by the alleged victim’s parent or guardian on behalf of the alleged victim in any case in which the alleged victim:

a.  is less than 18 years of age; or

b. has a developmental disability or a mental disease or defect that renders the alleged victim temporarily or permanently incapable of understanding the nature of the alleged victim’s conduct, including, but not limited to, being incapable of providing consent.

3. An applicant may seek a protective order in a court having jurisdiction over the place where the alleged conduct or attempted conduct occurred, where the defendant resides, or where the alleged victim resides or is sheltered.  These applications may only be filed in the Family Division of the Superior Court during normal court hours.

Temporary Protective Order:

1. A Judge of the Superior Court may enter an emergency ex parte order upon sworn testimony or an application of an alleged victim who is not physically present pursuant to court rules or by a person who represents an alleged victim who is physically or mentally incapable of filing personally.  An order for emergency, ex parte relief shall be granted on good cause shown and shall remain in effect until a judge of the Superior Court issues a further order.

2. A temporary protective order issued may include, but is not limited to, the following emergency relief:

a.  An order prohibiting the defendant from committing or attempting to commit any future act of nonconsensual sexual contact, sexual penetration, or lewdness against the alleged victim.

b.  An order prohibiting the defendant from entering the residence, property, school or place of employment of the victim or the victim’s family or household members and requiring the defendant to stay away from any specified place that is named in the order and is frequented by the alleged victim or the alleged victim’s family or household members.

c.  An order prohibiting the defendant from having any contact with the alleged victim or others. Contact includes but is not limited to personal, written, telephone contact or contact via electronic device.

d.  An order prohibiting the defendant from stalking or following the victim.

e.  An order prohibiting the defendant from committing or attempting to commit an act of harassment including an act of cyber-harassment against the victim.

f.  Any other relief that the court deems appropriate.

3. A copy of the temporary protective order issued shall be immediately forwarded to the police of the municipality in which the alleged victim resides or is sheltered.  A copy of the order shall also be forwarded to the sheriff of the county in which the defendant resides for immediate service upon the defendant in accordance with the Rules of Court.

Final Protective Order:

1. A hearing shall be held in the Superior Court within 10 days of the filing of an application in the county where the temporary protective order was ordered unless good cause is shown for the hearing to be heard elsewhere.  The standard for proving the allegations made in the application for a protective order shall be the preponderance of the evidence.

2. A final protective order issued pursuant to this section shall be issued only after a finding or an admission is made that the defendant committed an act of nonconsensual sexual contact, sexual penetration or lewdness, or any attempt at such conduct against the victim.

3. A final protective order issued may include, but is not limited to, the reliefs specified in item 2 of the Temporary Protective Order section of this memo.

4. A copy of the final protective order issued shall be immediately forwarded to the police of the municipality in which the alleged victim resides or is sheltered. A copy of the order shall also be forwarded to the sheriff of the county in which the defendant resides for immediate service upon the defendant in accordance with the Rules of Court.

A notice of issuance of the final protective order shall also be provided to the Division of Child Protection and Permanency in the Department of Children and Families where the victim is less than 18 years of age.

5. A final protective order issued shall remain in effect until the further order of a judge of the Superior Court. Either party may file a petition with the court to dissolve or modify a final protective order.

Protective Order – Enforcement:

1. Any temporary or final protective order issued shall be in effect throughout the state and shall be enforced by all law enforcement officers.

2. When a law enforcement office finds probable cause that a defendant has committed contempt of a temporary or final order entered, the defendant shall be arrested and taken into custody.

Contempt Proceedings:

A defendant’s violation of any protective order issued pursuant to P.L. 2015, c147 (C.2C:14-13 et al.) shall constitute an offense under subsection d. of N.J.S.2C:29-9 and each order shall so state.  All contempt proceedings brought pursuant to subsection d. of N.J.S. 2C:29-9 shall be subject to any rules or guidelines established by the Supreme Court to promote the prompt disposition of criminal matters.  Contempt proceedings regarding the violations of a protective order will be conducted by a Superior Court judge in the Family Division.

Records, copies of protective orders:

All records maintained shall be confidential and shall not be made available to any individual or institution except as provided by law.

Central Registry of Protective Orders:

The Administrative Office of the Courts shall establish and maintain a central registry of all protective orders issued and all persons who have been charged with a violation of such protective order.

Judiciary staff will be trained on the procedures for implementation of the new legislation on May 2 and May 6. The training will be conducted by both Automated Trial Court Services and Family Practice staff.

Attached for your convenience is the new law advisory memorandum, issued November 18, 2015. Additionally, for those courthouses that have monitors that present information to litigants, please ensure that the following message displays on the monitors:

“A victim of non-consensual sexual contact, sexual assault or lewdness may apply for a Sexual Assault Survivor’s Protective Order.  Please contact your local Family Division for more information.”

Sexual Assault Survivor’s Protection Act (SASPA)

Frequently Asked Questions:

What type of conduct is prohibited by the Sexual Assault Survivors Protection Act?

The Act addresses nonconsensual sexual contact, sexual penetration and lewdness, or any attempt at such conduct, as defined in N.J.S.A. 2C:14-14(a)(1).

Who may file an application for a Protective Order?

Any person who alleges that he or she was a victim of nonconsensual sexual contact, sexual penetration or lewdness, or an attempt at such conduct who does not meet the definition of a victim under the Prevention of Domestic Violence Act (“PDVA”). An application for relief under this act may also be filed by the alleged victim’s parent or guardian on their behalf in any case where the alleged victim is less than 18 years of age, has a developmental disability or mental disease.

Who is a victim for purposes of the PDVA and thus not entitled to protection under SASPA?

For purposes of the PDVA, a victim is defined in the statute, N.J.S.A. 2C:25-19(d), as follows: “Victim of domestic violence…shall include an person[:] who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member[:]…any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common.  If one of the parties is pregnant [; and]…any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.”

Can an individual who has suffered nonconsensual sexual contact, sexual penetration or lewdness, or an attempt at such conduct, elect whether to proceed under the PDVA or SASPA?

No.  The individual cannot choose between the PDVA and SASPA.  If the individual fits the definition of a victim under the PDVA, (dating relationship, married, household member, have a child in common) he/she will be ineligible for relief under SASPA.

Who makes the determination whether or not the plaintiff meets the definition of a victim for purposes of the PDVA and thus is eligible or ineligible to apply for a Protective Oder under SASPA?

The initial determination whether or not the plaintiff meets the definition of a victim for purposes of the PDVA will be made by the intake personnel in the DV unit.  Intake staff will be provided with AOC-approved criteria to apply to the facts as alleged by the plaintiff as to whether or not the individual may proceed under SASPA.

Who can hear an application for a Temporary Protective Order?

Either a judge or a domestic violence hearing officer (DVHO) can hear the application for a protective order.

What happens if a Domestic Violence Hearing Officer (DVHO) hearing the application for a Temporary Protective Order, or a Superior Court Judge hearing either the application for a Temporary Protective Order or a Final Protective Order, determines that the applicant does in fact meet the criteria of a victim for purposes of the PDVA?

If at any point after intake completes the application for a Temporary Protective Order, a DVHO feels that the applicant meets the definition of a victim for purposes of the PDVA, the Complaint and supporting paperwork should be brought to a judge for a determination.  If the Judge determines that the applicant does meet the definition of a victim for purposes of the PDVA (for example, the Judge determines that the parties had a dating relationship, were former members of a household, etc) the applicant shall then be escorted to the intake unit where he or she will be given the option of applying for a Temporary Restraining Order.

Similarly, if a Judge hearing an application for a Final Restraining Order determines that the plaintiff does not meet the definition of a victim under the PDVA and may have been subjected to alleged nonconsensual sexual contact, sexual penetration or lewdness, or an attempt at such conduct, the Judge shall direct the plaintiff to the intake unit where he or she will be given the option of applying for a Temporary Protective Order.

What findings are required before relief can be entered?

For a Temporary Protective Order, the Court may enter for good cause the emergency, ex parte temporary protective order “when necessary to protect the safety and well-being of an alleged victim” who has been subjected to the prohibited conduct.

For a Final Protective Order, the court shall consider but not be limited to the occurrence of one or more acts of the prohibited conduct” and the possibility of future risk to the safety or well-being of the alleged victim.”

If a Judge enters a Final Protective Order, can he or she order the defendant to complete services, such as counseling or impose monetary relief to the victim for reimbursement of expenses?

Under N.J.S.A., 2C14-16, a Final Protective Order may include “any other relief that the court deems appropriate.”  As such, based on the facts and particular circumstances of the case, the Judge has discretion to impose appropriate relief, such as reimbursement  of expenses to the plaintiff or appropriate services for the defendant.

Are there any mandatory fines required to be paid by the defendant if a Final Order of Protection is granted by a judge?

No. the legislation does not require any mandatory fines to be assessed against the defendant.

Can a plaintiff who has obtained either a Temporary Protective Order or a Final Protective Order seek to dismiss the Order?

Yes, a plaintiff can elect to dismiss their protective order by following the same process by which a plaintiff can dismiss his or her domestic violence restraining order.  Standard forms, such as a Certification to Dismiss and a Dismissal Order will be available.  Sexual abuse advocates, as opposed to domestic violence advocates, will be made available to speak with the victim by phone as part of the dismissal process.  However, unlike the requirement for domestic violence dismissal, the plaintiff does not have to speak to an advocate before her protective order is dismissed.

Can a plaintiff/victim who was a minor at the time the Final Protective Order was granted and is now an adult seek to dismiss the Order?

Yes, however, the hearing should not be scheduled as an emergent hearing. The case should be scheduled for a future hearing with notice to all parties to appear.

Can a Judge adjourn the final hearing for a Protective Order?

Yes. The Judge has discretion to adjourn the Final Hearing based on any delay in serving the defendant with the complaint, a party’s request to obtain counsel, etc. A standard continuance order will be available.

Can a victim file an application for a Temporary Protective Order on a weekend, holiday or at night?

No.  The hours in which a victim may file for TPO will parallel the hours in which a plaintiff can file for a TRO in your particular vicinage.

Will DVHOs be able to hear applications where the parent or guardian files as the plaintiff on behalf of the victim?

Hearing officers will have the discretion to determine whether the particular facts of the matter make the application complex and if so whether the application for TPO should then be heard by a judge.

In those instances where the plaintiff is a parent or guardian, can they seek to dismiss the TPO or FPO over the objection of the victim?

Yes.  The plaintiff can seek to dismiss the TPO or FPO at any time.  The matter will be heard by a judge who will have to consider the risk, safety and well-being of the victim.

Can a defendant be held in contempt for violating a TPO or FPO?

Yes, an alleged contempt of TPO or FPO will be handled in the same manner as an alleged contempt of restraining order.

Is the defendant required to be fingerprinted if a Final Order of Protection is granted by a Judge?

No, there is no finger printing requirement for the defendant in the Sexual Assault Survivor’s Protection Act.

Can the parties to a FPO request a modification of that order?

Yes, any party can request a modification of the order.  An application for modification must be completed by the party requesting the modification and the case scheduled as per your vicinage’s current policy.

How does a defendant request the dismissal of a FPO?

A defendant may request a dismissal of their Final Order of Protection order by filing a formal motion requesting a dismissal of the FPO.

Can a defendant’s weapons be seized when a TPO or FPO is granted?

The Sexual Assault Survivor’s Protection Act does not authorize seizure of weapons.

Should the child’s initials be inserted instead of their full legal name on the protection order?

No, law enforcement needs to know the name of the protected party.

Are the FPO hearings closed to the public?

This is not in the Sexual Assault Survivor’s Protection Act legislation.  It would be a judicial determination.

My law firm takes great pride in protecting victims of abuse.  Your inquiry is invited.