Sexual Assault Restraining Orders vs. Criminal Charges


In New Jersey, alleged sexual assault victims have a couple of different options in getting protective orders from the court. New Jersey law allows judges to set conditions against an alleged assailant through criminal prosecution or through a sexual assault restraining order. There are varying reasons why someone would prefer to seek a sexual assault restraining order instead of seeking criminal charges and vice versa. If you are looking to petition for a sexual assault restraining order, or are facing a petition against you, then it is important that you speak to an experienced attorney right away.

Restraining Orders Briefly Explained

A restraining order is court-ordered protection of an individual from another individual. To qualify for a restraining order, an individual must be the victim of domestic violence, sexual assault, or stalking. Most commonly, restraining orders are used in domestic situations where the threat of harm and danger is immediate as the parties are in an intimate or family relationship. Restraining orders typically include prohibitions on contact and prohibitions on the person restrained of where they can go and what they can and can't do regarding the alleged victim. If the parties involved in a restraining order case live in the same household, then the person restrained will be required to move.

What Is a Sexual Assault Restraining Order?

A sexual assault restraining order is a restraining order that is based on allegations of sexual assault against an individual. The Sexual Assault Survivors Protection Act (SASPA), passed in 2015, expanded the eligibility for sexual assault victims to seek a restraining order without the need for the parties to be in a domestic relationship. A sexual assault restraining order is based on the alleged criminal act of sexual assault but is a civil order. This means that the individual accused in the restraining order petition faces potential no-contact orders and other protective orders as deemed necessary by the court but does not necessarily face criminal charges. No police report is required, and the person seeking protection does not have to seek criminal charges to get this protection from the court. The provisions in a sexual assault restraining order operate similarly to the provisions in any other restraining order, where any violations will result in arrest and criminal prosecution.

Why Would Someone Prefer a Restraining Order Over Criminal Charges?

When someone alleges a crime as serious as sexual assault to the police, then it can lead to a lengthy and invasive investigation. Serious criminal charges also come with substantial due process rights for the accused, which can take months and even years to complete. If an alleged sexual assault victim wants to avoid this process and just wants the accused individual to be prohibited from having any contact, then a sexual assault restraining order might be preferable.

The legal burden of proof (the level that a case must be proven in court) for a criminal charge such as sexual assault is proof beyond any reasonable doubt. This is the highest burden of proof that we have in the American legal system. The legal burden of proof for a sexual assault restraining order is proof by a preponderance of the evidence. This is a lower standard that is also found in things like personal injury cases and other civil matters. This means that a sexual assault restraining order is easier to obtain for a petitioner.

Restraining order cases also process much faster than criminal cases. When a petition for a temporary restraining order is filed, it is typically heard the same day in court, where temporary protection can be immediately ordered by a judge. The final hearing for a final restraining order is then typically scheduled within ten days. Criminal cases often take several months before they can potentially be taken to trial due to criminal court schedules and the need for defense attorneys to properly prepare criminal cases for trials in front of juries. Restraining order cases are only heard by judges, and juries are never involved. As you can see, there are many advantages related to efficiency in restraining order cases when compared to criminal charges. If you are the defendant in a sexual assault restraining order case, then you have a higher likelihood of losing the hearing due to the lower burden of proof and quicker process.

How an Experienced Attorney Can Help

Whatever approach that is taken in a sexual assault claim is one that is made by the alleged victim. If you are the defendant in a sexual assault claim, then it is critical to be prepared for both the possibility of a sexual assault restraining order as well as potential criminal charges. What is said in a restraining order hearing can be used in any other related claim, including any potential criminal charges. The testimony of the petitioner and defendant can be used against them in a criminal case if one is ultimately filed.

An attorney can help you whether you are the petitioner or defendant in a restraining order case. You have rights as both a petitioner and defendant, so it is always recommended to have an attorney represent you to protect those rights. Each case requires individual review and assessment to determine your best approach forward.

Contact the Lento Law Firm Today

If you have legal questions regarding the differences between a restraining order and criminal charges, then make sure you speak to an experienced attorney. A restraining order can be a useful tool for victims of violence but can also be based on false accusations. The attorneys at the Lento Law Firm have the experience and knowledge to help you with your restraining order issue. To learn why the Lento Law Firm is the right choice, call us toll-free at 888-535-3686 or contact us online.

Contact a Family Law Attorney Today!

Attorney Joseph D. Lento has more than a decade of experience practicing Family Law in New Jersey. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph Lento will go above and beyond the needs for any client and fight for what is fair.

This website was created only for general information purposes. It is not intended to be construed as legal advice for any situation. Only a direct consultation with a licensed Pennsylvania, New Jersey, and New York attorney can provide you with formal legal counsel based on the unique details surrounding your situation. The pages on this website may contain links and contact information for third party organizations - the Lento Law Firm does not necessarily endorse these organizations nor the materials contained on their website. In Pennsylvania, Attorney Joseph D. Lento represents clients throughout Pennsylvania's 67 counties, including, but not limited to Philadelphia, Allegheny, Berks, Bucks, Carbon, Chester, Dauphin, Delaware, Lancaster, Lehigh, Monroe, Montgomery, Northampton, Schuylkill, and York County. In New Jersey, attorney Joseph D. Lento represents clients throughout New Jersey's 21 counties: Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, Salem, Somerset, Sussex, Union, and Warren County, In New York, Attorney Joseph D. Lento represents clients throughout New York's 62 counties. Outside of Pennsylvania, New Jersey, and New York, unless attorney Joseph D. Lento is admitted pro hac vice if needed, his assistance may not constitute legal advice or the practice of law. The decision to hire an attorney in Philadelphia, the Pennsylvania counties, New Jersey, New York, or nationwide should not be made solely on the strength of an advertisement. We invite you to contact the Lento Law Firm directly to inquire about our specific qualifications and experience. Communicating with the Lento Law Firm by email, phone, or fax does not create an attorney-client relationship. The Lento Law Firm will serve as your official legal counsel upon a formal agreement from both parties. Any information sent to the Lento Law Firm before an attorney-client relationship is made is done on a non-confidential basis.