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

To Obtain a Final Restraining Order For Harassment, The Court Must Find “Intent To Harass.”

In New Jersey a restraining order predicated on harassment cannot be issued if based on a mere expression of opinion that someone finds offensive or upsetting.  When I or my associate attorneys prepare for a final restraining order trial with a harassment charge, we focus on the intent or purpose of the According to New Jersey Statute 2C:33-4, harassment is defined as when a person with purpose to harass, makes a communication anonymously or at inconvenient hours, in an offensive manner with the purpose to alarm or seriously annoy the other person. As experienced domestic violence trial lawyers, my law firm embraces that the most important requirement to prove to a Judge of the Superior Court of New Jersey is the purpose to harass. New Jersey courts do not measure the effect of the speech on the victim, but rather look to the purpose of the person making the speech.

In E.M.B. v. R.F.B, son R.F.B appealed from a final domestic violence restraining order entered against him for harassment. On August 18, 2009, a temporary restraining order was entered against him. He was not properly served because the victim, his mother, did not know his present whereabouts. Therefore, an indefinite restraining order was issued against him on August 27, 2009. On September 17, 2009, a final restraining order hearing was held but R.F.B did not appear. The court noted that he had been served by telephone and thus had adequate notice to be present. The court declared he was voluntarily absent from the proceedings. His 88 year-old mother provided evidence.

Fifty-six year old R.F.B lived with his mother in Somerdale. On August 18, 2009 she filed a domestic violence complaint against him because he stole the keys to her car, cell phone, bank book, money, and some jewelry. She also testified that once before he took her wallet and mailed it back to her with the money gone. She categorized his behavior as “controlling” and stated that he also called her a “senile old bitch.” When the court asked her it that language “would annoy her,” she replied that it hurt her. She further testified that he had stolen small things from her before and on one occasion locked her out of the house.

The trial court found that R.F.B had committed domestic violence against her because he committed the predicate act of harassment, enumerated in New Jersey’s Prevention of Domestic Violence Act. The court found her to be a credible witness and made the following findings. The trial judge found that the acts described by E.M.B were harassing acts. She was found to be sincerely embarrassed and hurt while she was weeping at testimony so the judge found that R.F.B acted with a purpose to annoy or to alarm E.M.B. While the court found the predicate act of harassment had been established it failed to specify what section of New Jersey Statute 2C:33-4 was violated. It concluded that a restraining order was necessary to protect E.M.B from future acts of domestic violence. R.F.B appealed and challenged the factual findings of the trial judge and the entry of the final restraining order.

According to New Jersey Statute 2C:25-18, domestic violence is a serious crime against society. There are thousands of victims in the State of New Jersey who are beaten, tortured, and even killed in some extreme cases. There is also a correlation between spousal abuse and child abuse. Children, who may not be physically assaulted, suffer deep and long lasting emotional affects from witnessing domestic violence. In passing New Jersey Statute 2C:25-18, the legislature intended to make sure victims of domestic violence had the maximum protection from abuse that the law could provide.

When hearing a domestic violence case, the trial judge has two responsibilities. The judge must first determine if the victim has proven, by a preponderance of the evidence that one or more acts enumerated in New Jersey Statute 2C:25-19a has occurred. After an act of domestic violence has been established, then the judge must decide whether the court should order a restraining order to protect the victim.

Domestic violence describes a pattern of The Prevention of Domestic Violence Act indicates that the focus of the Legislature was regular serious abuse. This is evidenced by the references to torture, battery, beatings, and killings. Another focus was the long term damage suffered by children who observed the same acts. Some of the remedies provided by the statute are the exclusion of the offender from the marital home, suspension of visitation, monetary relief to the victim, and mandatory counseling. To ensure that victims of domestic violence who were subjected to criminal conduct by their mates had complete access to protection under the legal system, the domestic violence statute incorporated the statutes for homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual conduct, lewdness, criminal mischief, burglary, criminal trespass, and harassment.

According to New Jersey Statute 2C:33-4, harassment is defined as when a person with purpose to harass: makes a communication anonymously or at inconvenient hours, in an offensive manner or any other manner likely to cause annoyance or alarm; strikes, kicks, shoves, or threatens to do so; engages in any other alarming conduct or repeatedly commits acts with the purpose to alarm or seriously annoy the other person; or commits a crime of the fourth degree, acting with ill will, hatred or bias, with a purpose to intimidate based on the other person’s race, color, religion, sexual orientation or ethnicity.

The most important requirement is the purpose to harass. In consideration of the specific facts in E.M.B. v. R.F.B, the New Jersey Appellate Division found that the only communication that could even arguably support a finding of harassment occurred when R.F.B called his mother a “senile old bitch.” While this was no doubt upsetting, the court stated that they do not measure the effect of the speech on the victim, but rather look to the purpose of the person making the speech. According to the 1981 New Jersey Appellate Division case of State v. Fin American Corp., the harassment statute was not enacted to prohibit mere speech, use of language, or other forms of expression. The First Amendment of the United States Constitution permits the regulation of conduct not expression. Therefore, the speech prohibited by the harassment statute must be said with the specific intention of harassing the listener. A restraining order predicated on harassment cannot be issued if based on a mere expression of opinion stated with offensive language. The evidence failed to prove by a preponderance of the evidence that R.F.B called his mother a “senile old bitch” with the purpose to annoy her. Even the thefts would require proof of a purpose to “alarm or seriously annoy.” The factual record does not show that R.F.B acted with any other purpose other than to take his mother’s property as his own.

New Jersey Family Courts' must consider the totality of the circumstances when determining if the harassment statute has been violated. There was also no evidence of any prior harassing behavior. Evidence of prior thefts does not establish a prior history of domestic violence without proof of the requisite intent to harass. The evidence failed to support a conclusion that R.F.B acted with an intent to alarm or seriously annoy his mother. Therefore, the New Jersey Appellate Division reversed the final restraining order.

My law firm’s lawyers stand prepared to assist anyone facing a final restraining order trial.  Thank you.