People used to believe that everything that took place inside the home or in a romantic relationship was private and should remain that way. They never talked to others about abuse of children or spouses or domestic partners. Nor was it reported to authorities–not even sexual abuse.
Fortunately, the world is becoming more enlightened. Lawmakers and law-enforcement agencies understand that sexual violence is just as harmful within a family as when perpetrated by a stranger. Regardless of a couple's marital status or relationship, domestic sexual violence is not just a private matter. Society has a responsibility to protect victims of sexual violence, whatever the relationship is between the victim and the perpetrator.
New Jersey law defines sexual contact as “intentional touching…either directly or through clothing, of…intimate parts for the purpose of degrading or humiliating the victim, or sexually arousing or sexually gratifying the actor.” “Intimate parts” are defined as a person's sexual organs, genital area, anal area, inner thigh, groin, buttock, or breast.
Nonconsensual sexual contact includes not just rape or assault but also groping, rubbing, or any form of unwanted touching of an intimate part.
New Jersey law provides a mechanism for a victim of criminal sexual contact to protect themselves against a recurrence by obtaining a protective order (also called a restraining order) prohibiting the perpetrator from having any sort of contact with the victim, whether by phone, text, online or in person. The order is handed down by a judge after a hearing. A person who violates the order is deemed to be in contempt of court.
A protective order is not the same thing as a criminal complaint. Criminal complaints and protective orders work in tandem:
- A criminal complaint asks law enforcement and the judicial system to investigate and prosecute the perpetrator of a crime.
- A request for a protective order asks a court to issue a legal order prohibiting the alleged perpetrator from having any contact with the victim.
Who May Request a Protective Order
Those eligible to file for a protective order include:
- The victim
- For victims who have not yet turned 18, a parent or guardian
- A parent or guardian, on behalf of an adult victim with developmental disabilities or mental diseases/defects
Where to File a Request for a Criminal Sexual Contact Protective Order
A victim, parent, or guardian may apply for a protective order in the county court where the alleged or attempted conduct occurred, where the perpetrator resides, or where the alleged victim lives or is currently staying. There is no fee to apply for a criminal sexual-contact protective order, and the applicant or the person for whom the protective order is sought need not list their address on the form.
Criminal Sexual Contact Against a Minor
Take note that if the perpetrator is a parent, guardian, or someone else having care or custody of a legal minor, the incident needs to be reported to the Division of Child Protection and Permanency (DCPP) in the Department of Children and Families. The DCPP has local offices throughout the state.
Criminal Sexual Contact by a Minor
If an act of criminal sexual contact is carried out by a person under 18 who is still under the legal care of a parent or guardian, different laws apply regarding protective orders. Under these circumstances, the applicant should inform the court clerk of the alleged perpetrator's age so that the clerk can provide the applicant with the appropriate forms.
Under the New Jersey Address Confidentiality Program, a victim who has moved to a new address and would like to keep it concealed from the abuser may apply for a designated address that will be known only to employees of the Department of Children and Families' Division on Women. There is no fee to file for a restraining order or to have it served.
The forms to request a protective order may be found online, in the court clerk's office of any county courthouse, or at a police station. Read the directions carefully, and don't hesitate to ask the clerk questions if you don't understand something. Be aware that clerks of the court can answer questions about how to fill out the forms but are not allowed to provide legal advice.
Under New Jersey law, anyone in a relationship who has been harmed or believes they are at imminent risk of harm may file a request for an emergency temporary restraining order (“TRO”).
A police referral is not required in order to request a TRO. Neither is an arrest or conviction of the perpetrator, but the victim must be able to prove that a predicate act of violence occurred. Any act of nonconsensual sexual contact will be considered a predicate act of violence.
An emergency TRO goes into effect immediately. It forbids the alleged abuser (the “defendant”) from contacting or going near the person who requested the TRO (the “plaintiff”) until the date of a hearing.
Because emergency TROs do not require that the defendant be served or notified before it is issued, the court always schedules a hearing to take place soon after the TRO is issued–in New Jersey, generally ten days or so. This gives the defendant time to be notified by the police or sheriff, and it gives both parties time to assemble evidence and prepare for the hearing.
In some cases, the judge may decide that not enough evidence has been presented to issue a TRO. Either way, the judge will set a date for a full hearing so that each side can present their case in court. A police officer or sheriff will serve the alleged abuser with notice of the hearing.
On the date of the hearing, both parties must appear in court. To ensure the safety of all, sheriffs are always present during the hearings and accompany the parties out of the courtroom after the hearing.
Final Restraining Orders
If the defendant fails to appear or send a legal representative, the judge will most likely grant the restraining order. If the plaintiff does not appear, the judge may reschedule the hearing, or may take it off calendar, which means that the plaintiff will have to start the application process over again.
After hearing from both parties, the judge will decide whether to grant a final restraining order. If it is granted, the plaintiff should make several copies. One copy should be kept with them at all times. The others should be distributed to any places where the defendant might likely show up: at the plaintiff's workplace, home, and in the car. If there are school-age children in the relationship, a copy should be given to the school office.
If the defendant did not show up for the hearing and has not yet been served with the order, then as soon as this has been done and the person serving has signed the proof of service, make copies of it, and give one to everyone who has already been given a copy of the order.
Anyone in New Jersey who violates a protective order is committing a felony and could be jailed for 6 to 18 months. They also face up to a $1,000 fine.
If you need advice about obtaining or contesting a New Jersey protective order or with any other family law matter, contact the Lento Law Firm.