If a person requests a restraining order in NJ, they need to support enough evidence to show that it is more likely than not there is cause for concern that they could be the subject of physical violence. They must be a ‘victim of domestic violence,’ including someone in a dating relationship with the aggressor. Obtaining a NJ restraining order is, therefore, a question of fact to determine whether the applicant is in reasonable fear for their safety and whether they are in a dating relationship. The October 23, 2018 published trial court case of TM v RMW involved a heavy fact-intensive inquiry by the court in determining whether a restraining order was warranted.
The specific questions were, first: whether a plaintiff is a ‘victim of domestic violence’ as defined within a ‘dating relationship’ when the relationship consisted primarily of an intermittent sexual relationship but missing the traditional elements of a dating relationship defined in Andrews v. Rutherford. Next, the court examined whether a defendant can use the defense of consent when accused of simple assault and harassment by offensive touching when there was no dispute that the parties enjoyed consensual rough sex with each other.
The two individuals in question had known each other for several years. The female plaintiff was granted a temporary restraining order (TRO) alleging that they had a dating relationship, including a sexual relationship with the defendant that has lasted for 8 years. The incident which led to her request occurred during a session of consensual rough sex, wherein the plaintiff alleged that the defendant said he hated her and punched her with a closed fist. When she asked him about the punch, he laughed and punched her again. At the hearing for the final NJ restraining order, the parties represented themselves and had no other witnesses other than themselves. The parties had frequent sex during the first years of their relationship, followed by a three-year cessation of sex. But for the last year, the relationship had consisted of irregular encounters – about once every three months – which involved consensual rough sex. Continue Reading →