If someone wants protection from the court from another person, then he or she may be able to request a protective order from a judge. A protective order can prevent or prohibit someone from having contact or being in the vicinity of someone else and can be enforced by the police and the court. Protective orders can be implemented by judges separate from any criminal proceeding or case. If the alleged activity involves sexual assault, then an alleged victim can seek a protective order under the Sexual Assault Survivors Protection Act (SASPA). If you have legal questions about a sexual assault protective order as either a petitioner or defendant, then it is important that you speak to an experienced attorney as soon as possible.
What is a Sexual Assault Protective Order?
A sexual assault protective order is an order granted by a judge that is meant to protect a sexual assault victim from his or her abuser. These orders are available for those who are the victims of actual or attempted nonconsensual sexual contact, sexual penetration, or lewdness as outlined by New Jersey law found at 2C:14-14(a)(1).
Under SASPA, those who allege that they have been sexually assaulted can seek a protective order regardless of whether criminal charges are sought.
Before SASPA was passed, those alleging sexual assault in New Jersey were unable to seek protective orders unless they were in a qualified domestic relationship with the alleged perpetrator. A qualified domestic relationship can refer to a close dating relationship, familial relationship, or if the parties had previously lived together. If the alleged perpetrator was a stranger, the only option before SASPA was to file a criminal case.
If a sexual assault protective order is granted, then it will prohibit the defendant from having any contact with the alleged victim. If that satisfies the alleged victim, then he or she is not required to do anything further. A petitioner does not have to file criminal charges against the defendant to have the protections of a court order. Seeking a sexual assault protective order is an intermediary option that may be preferable due to the lower legal standards of proof and the ability to avoid an in-depth investigation and lengthy court process.
What Type of Action is a Sexual Assault Protective Order?
Sexual assault protective orders are civil orders that are backed by the power of law enforcement. If someone is accused of violating a sexual assault protective order, then he or she can face criminal charges.
Once a sexual assault protective order is granted, it will be entered into police databases. This is meant to help law enforcement if there is a call regarding a violation. If a sexual assault protective order is granted, it is important to know that the order does not generate an entry onto anyone's criminal record. If someone is alleged to have violated the provisions of the order, then the arrest and prosecution will be entered onto his or her criminal record.
How Does Someone Qualify for a Sexual Assault Protective Order?
For someone qualify for a sexual assault protective order, he or she must be the victim of someone who is not a current or former dating partner who committed:
Actual or attempted nonconsensual sexual contact
This involves the intentional touching of either party's sexual organs, genitals, anus, inner thigh, groin, breast, or rear end for the purposes of sexual gratification or humiliation.
Sexual penetration
This includes intercourse, oral sex, or anal sex by use of a body part or object on either party.
Lewdness
This involves someone exposing their genitals for the purposes of sexual gratification.
If the person involved is a current or former dating partner, then a restraining order can be sought instead of a sexual assault protective order, as its protections will generally be the same.
What is the General Process to Seek and Obtain a Sexual Assault Protective Order?
The first step in obtaining a sexual assault protective order against someone else is by filing a petition in the local county court. The petition must include a detailed explanation of what is alleged to have taken place. Before granting a sexual assault protective order, a judge will make sure that the conduct alleged qualifies the petitioner to seek the order and that the order is necessary to protect the petitioner from the defendant. If the judge agrees to a sexual assault protective order, then that order is temporary until a final hearing takes place to determine final orders.
What are the Types and Timelines of Sexual Assault Protective Orders?
In New Jersey, there are two types of sexual assault protective orders, temporary sexual assault protective orders and final sexual assault protective orders. They are described as follows:
- Temporary Sexual Assault Protective Orders
The first type of sexual assault protective order that is available is a temporary one. When someone petitions for a sexual assault protective order, the court will hear the petition ex parte. This means that the judge will hear the petitioner on their own, without the accused or their attorney present. If this order is granted, then protective orders will be implemented temporarily until a final determination can be made after a full hearing. The final hearing for a sexual assault protective order will typically take place within ten days of a temporary protective order being granted. All the provisions of a temporary order remain until a decision is made on a final order.
- Final Sexual Assault Protective Orders
Final sexual assault protective orders are available after a full hearing takes place. In this hearing, both parties will be able to present their cases, evidence, and any witnesses who may have relevant testimony. If the judge finds that the accused committed or attempted to commit an act of nonconsensual sexual contact, sexual penetration, or lewdness, then he or she can grant a final sexual assault protective order. There is no expiration on a final sexual assault protective order. Once a sexual assault protective order is granted, then it remains in place indefinitely. The only way that a final sexual assault protective order can be removed is by a judge if he or she is convinced that removal is a good idea.
What Protections are Available in a Sexual Assault Protective Order?
Some of the protections available in a sexual assault protective order include:
- Prohibiting the defendant from committing or attempting to commit any future act of nonconsensual sexual contact, sexual penetration, or lewdness against the petitioner
- Prohibiting the defendant from entering the petitioner's residence, property, school, or workplace
- Prohibiting the defendant from going near anywhere identified in the order that the petitioner or his or her family members frequent
- Prohibiting the defendant from having contact with the petitioner or anyone else named
- Prohibiting the defendant from directly or indirectly having any communication that is likely to cause the petitioner annoyance or alarm. The communication could be in any form
- Prohibiting the defendant from harming, stalking, and/or following the petitioner, or threatening to harm, stalk, or follow the petitioner
A judge can also order other measures as he or she sees fit regarding the allegation to protect the petitioner.
What is the Difference Between a Sexual Assault Protective Order and a Criminal Charge in New Jersey?
The biggest difference between a sexual assault protective order and a criminal charge is that a protective order is civil in nature while criminal charges are criminal in nature. A sexual assault protective order can be granted independent of any criminal case and even if the petitioner never calls the police. If the protections of a sexual assault protective order satisfy the petitioner, then he or she can stop there and don't have to go any further. Criminal complaints are investigated differently than are cases involving protective orders, which are more limited in nature.
If the petitioner wants to file criminal charges against the defendant, then that will trigger a complete police investigation to determine if criminal charges should be authorized against the defendant. Sexual assault cases are among the most serious charges and typically require in-depth investigations. These investigations typically include recorded questioning and the collection of physical evidence.
Under New Jersey law at 2C:14-14, a petitioner can obtain a sexual assault protective order regardless of whether a criminal case has been initiated. Sexual assault protective orders are processed in the Family Division of the Superior Court, while criminal cases are processed in the criminal court. To obtain a sexual assault protective order, a petitioner must prove by a preponderance of the evidence that the alleged events and conduct took place. To obtain a criminal conviction, the prosecutor must prove beyond a reasonable doubt that the alleged events and conduct took place, a much higher requirement.
Can a Sexual Assault Protective Order Be Granted Against an Accused Who Lives in a Different State?
If the petitioner and defendant live in different states, then the judge may not have jurisdiction over the defendant. Without jurisdiction, the court does not have any power over the individual. If the court does not have jurisdiction over the defendant, then the judge may not be able to grant a sexual assault protective order against him or her.
A court can have personal jurisdiction over a defendant to make protective orders if:
- The defendant has a substantial connection to the state of New Jersey.
- At least one of the alleged acts took place in the state of New Jersey.
- A petition is filed, and the defendant is served with the petition while in the state of New Jersey.
If any of the above factors are present, then the court can exercise jurisdiction over the defendant. Jurisdiction can also be extended or given by consent. Make sure you can file for a sexual assault protective order even if the defendant lives out of state.
If a New Jersey judge refuses to issue a sexual assault protective order over an out-of-state defendant, then the petitioner can file for an order in the appropriate court in the state where the defendant resides. In practice, this could be difficult due to the potentially lengthy and expensive travel that will be necessary to obtain an order. It may be difficult to obtain a sexual assault protective order against an out-of-state defendant, but the fact that protections don't expire is motivation enough for some to bear the cost and inconvenience of seeking a protective order in another state.
What Happens If Someone Violates a Sexual Assault Protective Order?
The violation of a protective order provision is criminal in nature under a criminal contempt charge. Under New Jersey law, anyone alleged to have violated a sexual assault protective order must be arrested, even if the allegation turns out to be false. The mandatory arrest is one provision that scares many as a false arrest usually results without any sanction to the police or the petitioner. If someone violated a sexual assault protective order, then he or she can be charged with criminal contempt. The penalties for criminal contempt are:
- Up to 180 days in jail and up to a $1,000 fine for a first violation
- A mandatory 30 days in jail for a second violation
If you have legal questions, then call us at the Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about sexual assault protective orders, then it is important that you speak to an experienced attorney. It is important to know how the protective order process works if you are seeking a protective order or are facing an order against you. Attorney Joseph D. Lento and his team at the Lento Law Firm have helped countless clients in New Jersey address and resolve concerns related to sexual assault and restraining orders, and they can help you too. To learn why the Lento Law Firm is the right decision to help you with your case, call us at 888-535-3686 or contact us online.
