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

Sexual Assault Survivor Protection Act of 2015 and New Jersey’s Prevention of Domestic Violence Act

On November 9, 2015, Governor Christie signed A-4078 into law as P.L. 2015, c. 147. The law takes effect on May 7, 2016. A copy of the law is attached and is available on the Judiciary Infonet under Legal Reference/Legislation Affecting Courts. Below is a summary of the law for lawyers, judges and the public. 

The “Sexual Assault Survivor Protection Act of 2015” authorizes the court to issue temporary and final protective orders on behalf of victims of “nonconsensual sexual contact,” “sexual penetration,” or “lewdness,” as three terms are defined in the law, or attempts at such conduct.

Under the law, any person alleging to be a victim of nonconsensual sexual contact, sexual penetration, or lewdness, or an attempt at such conduct, who is not otherwise eligible to seek a restraining order as a victim of domestic violence pursuant to the “Prevention of Domestic Violence Act of 1991” may file an application with the Superior Court seeking a temporary protective order. The application may be filed by a parent or guardian on behalf of a victim when the person is under 18 years of age, or has a developmental disability or is mentally incapacitated to the extent that the person is incapable of providing consent to certain sexual conduct. The law clarifies that if the alleged offender is an unemancipated minor, the victim must seek relief pursuant to the provisions of the “New Jersey Code of Juvenile Justice.”

“The new law provides that the court may issue a temporary protective order regardless of whether criminal charges related to the incident were filed or disposed. In addition, the law clarifies that the filing of an application for a temporary protective order does not bar the filing of a criminal complaint or a prosecution for the same act.”

Under the law, a judge of the Superior Court is authorized to enter an emergency, ex parte protective order when necessary to protect the safety and well-being of the alleged victim on whose behalf the relief is sought. The law provides that the court must, upon consideration of the application, order emergency, ex parte relief in the nature of a temporary protective order if it determines that the applicant is a victim of a sexual conduct described in the law and is otherwise eligible for such relief under the law. The court must render a decision and issue a temporary protective in an expedited manner. A temporary protective order issued under the law remains in effect until further order of a judge of the Superior Court.

The law contains specific requirements regarding the testimony and appearance of the victim, the relief that may be granted in a temporary protective order, the right to immediate appeal of the temporary protective order, service of the order on the respondent, and the distribution of the order to law enforcement.

The law provides that, after the temporary protective order is issued, a hearing must be held in the Superior Court within 10 day of the filing of the application for a temporary protective order in the county where the order was issued, unless good cause is shown for the hearing to be held elsewhere. Under the law, If a criminal complaint has been filed which arises out of the same incident that is the subject matter of an application for a protective order, testimony given by the applicant, the alleged victim, or the respondent shall not be used in the criminal proceeding against the respondent, other than contempt matters, and where it would otherwise be admissible hearsay under the rules of evidence that govern situations when a party is unavailable. The law provides that the standard for proof for allegations made in the application for a protective order at the hearing is a preponderance of evidence. At the hearing, the law requires that, at a minimum, the court must consider the occurrence of one or more qualifying acts of sexual conduct against the alleged victim and the possibility of future risk to the safety or well-being of the alleged victim.

The law clarifies that the court shall not deny relief due to the applicant’s or alleged victim’s failure to report the incident to law enforcement; the alleged victim’s or the respondent’s alleged intoxication; whether the alleged victim did or did not leave the premises to avoid the alleged sexual conduct, or an attempt at such conduct; or the absence of signs of physical injury to the alleged victim. In addition, the law states that evidence of the alleged victim’s previous sexual conduct or manner of dress at the time of the incident shall not be admitted nor shall any reference be made to such conduct or manner of dress, except as provided in N.J.S.A. 2C:14-7 (the State’s Rape Shield Law).

The law provides that the issue of whether an act alleged in the application for a protective order occurred or whether an act of contempt under paragraph (2) of subsection b. of N.J.S. 2C:29-9 occurred, is not subject to mediation or negotiation in any form.

Under the law, a final protective order issued pursuant to this section shall be issued only after a finding or an admission is made that the respondent committed an act of nonconsensual sexual conduct, sexual penetration, or lewdness, or any attempt at such conduct, against the alleged victim. The law requires that a final protective order must: (1) prohibit the respondent from having contact with the victim; and (2) prohibit the respondent from committing any future act of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct against the victim. The law lists other reliefs that the court may include in the protective order. Once issued, the protective, the protective order remains in effect until further order of a judge of the Superior Court.

The law sets forth specific provisions, regarding the final protective order including the distribution of the order to law enforcement, notification of the issuance of the order to the Department of Children and Families if the victim is a minor, service of the order on the respondent, and the dissolution of the order. 

The law provides that when a law enforcement officer finds probable cause that a respondent has committed contempt of a protective order entered pursuant to the law; the respondent must be arrested and taken into custody. Thereafter, the court must determine whether the respondent will be released pending trial or detained pending a pretrial detention hearing pursuant to N.J.S.A. 2A:162-18 and 2A:162-19 and applicable court rules.

The law provides that a respondent’s violation of any protective order issued under its provisions constitutes an offense under a new subsection c. of N.J.S.A. 2C: 29-9. Under subsection c., a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered pursuant to the Sexual Assault Survivor Protection Act of 2015.

The law requires that the AOC establish and maintain a central registry of all protective orders issued pursuant to its provisions and all persons who have been charged with a violation of such a protective order. Under the law, all records made for the purposes of the registry must be kept confidential and can be released only to certain officials and agencies, which includes courts and law enforcement officials. The law establishes penalties for the unauthorized disclosure of records maintained in the registry.

Finally, the law provides that no fees or costs shall be assessed to an applicant seeking relief under its provisions, that all records maintained pursuant to its provisions are confidential and shall not be made available to any individual or institution except as provided by law, and that a victim must be provided with copies of all protective orders and other relevant documents upon request at no cost.

As our law firm stands prepared to protect any victim of domestic violence or sexual abuse, please never hesitate to contact our office to learn more about how we may be able to help.