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

Is It A Violation Of A Final Restraining Order To Photograph The Victim?

As a tested attorney who has handled countless domestic violence cases in New Jersey, the answer is clearly yes.  Once a Final Restraining Order has been issued, there is to be no contact whatsoever, period.  One of the attorneys at my law firm recently represented a victim in a Temporary Restraining Order (which we won, and it then became final) at the Middlesex County, New Jersey Family Court House in a case wherein the defendant was, among other things, video taping our client from his car as he followed her to work.  This amounted to both stalking and harassment.  Below is an illustration and explanation of why this is a violation that would lead to the defendant’s immediate arrest.

In State v. D.G.M., the New Jersey Appellate Division reviewed a contempt conviction, and considered whether D.G.M violated the “no contact or communication” provision of an amended final restraining order obtained pursuant to the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-17 to -35, by sitting near and briefly filming his ex at their six-year-old son’s soccer game. While such conduct falls within the final restraining order’s prohibition on “communication,” the New Jersey Appellate Division concluded that D.G.M could not have fairly anticipated the result. In applying the doctrine of lenity, the appellate panel reversed the conviction. 

The parties had a short romantic relationship in 2006 that resulted in one child. In 2010, the mother filed a domestic violence action and obtained a final restraining order. This final restraining order was later amended on numerous occasions for child-related reasons. For example, an amendment entered in 2012 directed that all communication between the parents would only be by “the online family wizard system or the fathers cell phone.” This amended final restraining order did not otherwise alter the standard provision in the original final restraining order that “prohibited” D.G.M “from having any (oral, written, personal, electronic or other) form of contact or communication with” the mother.

The New Jersey Appellate Division noted that the parties at issue had a child together and were both involved in the child’s life. The Supreme Court has long recognized the right “to raise one’s children [is an] essential, basic civil right . . . far more precious . . . than property rights.” This fundamental right, however, still may be limited. When D.G.M committed an act of domestic violence in 2010, a Family Part judge correctly limited his ability to communicate or contact the child’s mother by entering a final restraining order. That decision has generated further conflict, evidenced by the subsequent amendments to the final restraining order. 

According to the factual record, on November 17, 2012, D.G.M. appeared at the child’s soccer game. The final restraining order then in effect did not actually restrict his attendance at the game, but it did restrict D.G.M from having “any . . . contact or communication” with the child’s mother, who was also in attendance at the game. D.G.M was charged with violating the final restraining order, a disorderly persons offense under New Jersey Statute 2C:29-9(b), based on the allegation that he violated the final restraining order “by sitting directly next to” the child’s mother during the soccer game and us[sing] a cellular phone to videotape or take pictures of her. At the conclusion of a one-day trial, D.G.M. was convicted in only one respect. He was sentenced to a one-year probationary term. 

In reasoning the decision, the judge mentioned that D.G.M had placed his chair “within a few feet” of his child’s mother, but he also discussed how D.G.M testified that “he was maybe 10 or 15 feet away” and, ultimately, the judge never made a definitive finding as to the distance between him and his child’s mother. The New Jersey Appellate Division, however, did not interpret the judge’s decision as convicting D.G.M for violating the final restraining order for being too near her. Instead, the decision rested on D.G.M.’s act of filming or photographing his child’s mother. Therefore, the New Jersey Appellate Division examination was limited to whether the final restraining order’s “no contact” provision by recording the mother’s image with his cellphone or, in the trial judge’s words, whether “recording [her] was a form of contact.”

The New Jersey Appellate Division stated that “contact” has numerous commonly-used meaning. In light of the facts, the appellate panel thought it likely “contact” as used here means the same as it does in The Oxford English Dictionary, “to get into contact or in touch with.” As its ordinary dictionary definition suggests, “communication,” in this context should be understood as the “imparting, conveying, or exchange of ideas, knowledge, information, etc.” This scope of banned behavior would obviously extend to vast variety of words or conduct, which, unlike “contact,” would not necessarily be dependent on the distance between the parties. Someone prohibited from having any form of “communication” with a domestic violence victim might be found to have violated a final restraining order by telephoning from across country, gesturing at or toward the victim from across a room, from a passing automobile, or from the opposite side of a soccer field. 

A defendant’s mere act of filming or even simply staring at a victim sends a message and, in many circumstances, a message sufficiently alarming or annoying, or even threatening, so as to constitute the type of conduct the Legislature had in mind when enacting the Prevention of Domestic Violence Act. As such, the New Jersey Appellate Division held that a person restricted by a similarly worded final restraining order engages in a “communication” by pointing a camera at a domestic violence victim from a standpoint close enough as to be observed by the victim. The this very reason, the New Jersey Appellate Division concluded that D.G.M engaged in communication with his child’s mother when he filmed her, even if it was very briefly, with his cellphone. 

Still, the New Jersey Appellate Division’s determination that D.G.M.’s conduct was a form of communication forbidden by the final restraining order does not necessarily lead to an affirmance of D.G.M’s conviction. The court stated that he is entitled to the application of the rule of lenity. Lenity was first described by Justice Holmes as a principle that an accused is entitled to “fair warning . . . of what the law intends to do if a certain line is passed.” In other words, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.” Certainly, in making this determination, courts may resolve statutory ambiguities by extrinsic aid. In fact, in prosecutions under N.J.S.A. 2C:29-9, the court is required to consider something outside the statute – the final restraining order itself – in determining whether the law has been violated. 

As a result, whether someone has been given “fair warning” that his conduct constitutes a criminal act requires resort to and a consideration of the clarity of the final restraining order. An understanding of the reach of the “no contact or communication” provision of the final restraining order required an interpretation of that language. Because, until this very case, no defendant would fairly be expected to understand that the filming or photographing of the victim falls within the scope of “contact” or “communication” contained in either N.J.S.A 2C:25-29(b)(7), or a final restraining order written in accordance with that law, the New Jersey Appellate Division was compelled to employ the doctrine of lenity and reverse the conviction. Before he could be fairly convicted, D.G.M. had the right to know where the line existed between permitted and prohibited conduct. The act of filming his child’s mother was not not explicitly prohibited by the final restraining order. The State is obligated to the prove a defendant’s knowing violation of a final restraining order beyond a reasonable doubt. Because, until this case, it was not clear whether the brief filming of a victim in an open and public place constituted a form of prohibited communication, D.G.M. could not have known to a sufficient certainty that the was violating the final restraining order by engaging in the conduct found to have occurred by the trial judge. 

Please contact my office if you find yourself involved in a domestic violence situation.