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NJ Restraining Order and Consensual Rough Sex: The Case of TM v. RMW

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.

The plaintiff testified that she had never consented to the use of a closed fist to punch her, but also admitted that they had never sat down to set boundaries for what force was appropriate during their sexual encounters. She also testified that their encounter continued for another 20 minutes after being struck. She further testified that the defendant had shown up to her workplace before, and she was concerned he would return. In response, the defendant stated that plaintiff had texted his girlfriend to say he was cheating on her. He had shown up at her workplace to question her about the incident, and he left voluntarily when she asked him to leave. The court felt that the plaintiff was not a credible witness. She was inconsistent in her allegations, including whether the defendant punched her a second time. The defendant was found to be consistent and a credible witness.

To figure out whether a dating relationship occurred for purposes of the NJ restraining order statute, the court used the six factors listed in Andrews. There had not been much interpersonal bonding, and neither party considered it to be ‘dating’ in spite of the span of the relationship. Neither party believed there was any future to the relationship, nor did they hold themselves out as a couple to their friends and family. For most of the Andrews factors, it would then appear that there is insufficient evidence to demonstrate a ‘dating relationship.’ But the final factor includes ‘other reasons unique to support or detract from a finding that a dating relationship exists.’ The purpose of the law in New Jersey is to give victims of domestic violence the maximum amount of protection under the law. Thus, the court used a qualitative analysis under Andrews, rather than relying on how many of the factors could apply and that a relationship like this should be considered a ‘dating relationship’ for purposes of the law. The Andrews case also explicitly left open the possibility that parties might be in a secret relationship where they purposely do not hold themselves out as a pair to friends and family.

Next, the court has to undertake a two-step analysis to determine whether there is sufficient evidence that at least one of the predicate acts in the statute has occurred, and if met, whether a restraining order should be entered. Given the physical acts admitted by the defendant, it was clear to the court that he engaged in both assault and offensive touching under the harassment statute. The court then had to consider the value of the defendant’s affirmative defense of consent. Consent to bodily harm will stand as a defense if the harm consented to is not serious, and the harm is reasonably foreseeable in an activity that is not prohibited by law. While the court could agree with the plaintiff that a closed fist punch would likely cross the lines of their previous conduct, the fact that she voluntarily engaged in sexual relations for a full twenty minutes after the punch undermines her argument that she had not consented. Her testimony was inconsistent. The court emphasized the lack of history of violence between the parties but still admitted that it was a close call as to whether the punch was appropriate. Therefore, the court needed to determine whether a restraining order was necessary to prevent further abuse.

There was no history of violence, nor any proof of prior threats, harassment or abuse by the defendant. The defendant’s testimony was candid and credible. Defendant had never come over to the plaintiff’s home uninvited, nor was there any credible evidence that the defendant’s behavior is impulsive. The court did not find that it was more likely than not that the victim would be protected from further abuse by instituting a restraining order, and thus vacated the TRO and dismissed the domestic violence complaint.

Obtaining restraining orders in New Jersey requires strong evidence and hard facts. If you have questions about getting a NJ restraining order, the Law Office of Peter Van Aulen can help and provide guidance for doing so. Call 201 – 845 – 7400 for a free initial consultation today.

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