New Jersey Criminal Restraint Law
Criminal restraint is a serious crime in New Jersey. It is classified as an indictable offense, which other states call a felony. Those found guilty of criminal restraint face up to five years in prison and a fine of up to $15,000.
If the criminal restraint involves a family member or if the two people are in a dating relationship, then the criminal restraint is considered a domestic violence crime, and the penalties may be greater than if the two people are strangers. The victim may apply to the local courthouse for a protective order or temporary restraining order.
Criminal restraint lies on a range of three similar offenses. The other two are false imprisonment and kidnapping. Criminal restraint falls between the two.
How Criminal Restraint Differs From False Imprisonment and Kidnapping
False imprisonment consists of knowingly restraining another person unlawfully in a way that interferes substantially with their liberty. Kidnapping involves the additional element of unlawfully moving a person to another place and holding them for ransom, reward, or as a hostage.
Criminal restraint is less serious than kidnapping and more serious than false imprisonment. In addition to knowingly restraining another person unlawfully in a way that interferes substantially with their liberty, criminal restraint involves at least one of two additional factors: the person must either knowingly restrain the victim "in circumstances that expose them to risk of serious bodily injury," or else hold them in a "condition of involuntary servitude."
The Elements of a Charge of Criminal Restraint
To determine whether a charge of criminal restraint is warranted, police officers and prosecutors look carefully at each term in the statute. The word "knowingly" is important because criminal law places great importance on the perpetrator's state of mind or mens rea. "Knowingly" means that the perpetrator is aware that it is practically certain that their conduct will cause a particular result.
"Unlawfully" means that the restraint was accomplished by force, threat, or deception. Thus, the perpetrator need not have touched the victim if they said or did something that caused the victim to believe they could not leave.
Risk of Serious Bodily Injury
In New Jersey, "serious bodily injury" is defined as "bodily injury which creates a substantial risk of death, or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." This encompasses a wide range of physical harms.
Note that the statute does not require that physical injury actually occur, only a risk of serious bodily injury. Say, for example, that a couple is in a car driving somewhere. They get into an argument, and the driver presses down on the pedal and begins driving very fast and recklessly. The passenger pleads with the driver to pull over and let them out, but the driver refuses.
Even if the driver eventually slows down and continues on without further incident, law enforcement would have grounds to charge the driver with criminal restraint because the conduct includes all elements of a criminal restrain charge:
- Unlawfully: The driver's refusal to slow down and allow the passenger to get out forced the passenger to remain inside the car
- Knowingly: The driver was certainly aware that they were driving recklessly, against the passenger's wishes
- Substantial interference with liberty: The driver's refusal to stop the car and allow the passenger to get out interfered substantially with the passenger's liberty
- Risk of serious bodily injury: The driver's reckless driving exposed the passenger to a risk of serious bodily injury because reckless driving often leads to crashes that result in serious bodily injury
Even when there is no risk of serious bodily injury, a charge of criminal restraint can be filed if the victim is held in a condition of "involuntary servitude." A condition of involuntary servitude exists any time someone creates circumstances that cause another person to believe that they must remain in a particular location. For example, a battered spouse or domestic partner may have been subjected to sufficient threats, intimidation, and verbal abuse that they are afraid to leave.
Or it may involve a work situation. There have been news stories about individuals who came to the U.S. in the belief that they were being offered jobs, only to be confined to one building and forced to work for little or no pay by the people who brought them there. Even if there was no physical violence, they are nevertheless considered to be criminal restraint victims.
Criminal restraint is often one of several charges arising out of a single incident or series of acts. A jury may be asked to determine whether the acts amount to kidnapping, criminal restraint, or false imprisonment.
Defenses to a Charge of Criminal Restraint
Being convicted of criminal restraint requires that the prosecution present evidence that proves each specific element of the crime beyond a reasonable doubt. When the only evidence is testimony from the two people involved, the issue often comes down to who is more credible on the witness stand. If the victim's testimony is filled with conflicting statements or is otherwise not persuasive enough, then the person charged is likely to be acquitted.
A criminal restraint charge does not apply to parents or guardians of minor children if the adult's sole purpose is to assume control of the child. However, if additional factors are involved–for example, if the prosecution can prove that the incident occurred within the context of a custody or visitation dispute–then the "assume control" defense will not be sufficient to exonerate the accused.
First-time offenders may be eligible to enroll in New Jersey's Pretrial Intervention program, an alternative to incarceration. Those who successfully complete the program will be able to clear their criminal record. The theory behind pretrial intervention is that early intervention at a time when such services "can reasonably be expected to deter future criminal behavior" may rehabilitate someone whose life circumstances contributed to their wrongful conduct. The guidelines state that deterrence of future criminal behavior "in many cases requires intensive work: counseling, psychotherapy, drug-abuse prevention and control, and employment placement."