In a ruling that is being hailed as a significant victory for survivors of sexual assault, the New Jersey Supreme Court has set new standards for determining impairment/consent, specifically when the accuser is seeking a restraining order under the Sexual Assault Survivor Protection Act of 2015.

Our East Brunswick domestic violence attorneys see the ruling in C.R. v. M.T. as having a sweeping impact on restraining order requests in cases involving intoxication, making it easier for victims to secure legal protection.

In this case, the victim sought a temporary protection order against the defendant under the SASPA, alleging sexual assault by him after a night of drinking. The defendant insisted the encounter was consensual, but the plaintiff said she was too intoxicated to give consent. Following a hearing, the trial Court deemed the accounts by both parties to be “equally plausible.” The Court determined due to the plaintiff’s extreme intoxication, she was unable to understand the nature of her conduct under SASPA. The Judge also noted that while defendant reportedly hadn’t tried to contact the plaintiff subsequent to their encounter, there remained a possibility he might harbor a grudge over the restraining order proceedings. With the purpose of SASPA being to protect victims of sexual assault, the Court ruled it was “more likely than not” that a final restraining order was appropriate.

That decision was reversed and remanded by the Appellate Division, which held the victim’s ability to consent due to intoxication should be measured by the “prostration of faculties” standard.” The case was certified to the New Jersey Supreme Court, which held that the prostration of faculties standard, which focuses on the mental state of the defendant, isn’t appropriate under SASPA restraining order requests. Instead, the affirmative consent standard, set which focuses on the perspective of the victim and was set forth in the 1992 ruling, should apply.

How This Impacts Future Restraining Orders Under SASPA

The restraining orders issued under SASPA aren’t criminal matters. They carry no criminal penalties at all (unless they are breached). Instead, what these orders do is help protect a sexual assault victim’s physical, mental, and emotional well-being by blocking the alleged attacker from further contacting them.

In order to secure a restraining order under SASPA, the plaintiff has to show one or more instances of non-consensual sexual contacts. Obviously, in situations where one or both parties were consuming alcohol, establishing consent (or lack thereof) gets trickier. What’s more, the SASPA doesn’t define “consent” or even give any guidelines for how Courts should determine whether sexual contact is consensual or not.

However, the landmark 1992 ruling in State in Interest of M.T.S., a delinquency case involving alleged acquaintance rape, established affirmative consent as the standard in sexual assault cases. The New Jersey Supreme Court cited the history of mistrust when it comes to testimony by sexual assault victims, with Courts often insisting a show of physical resistance to rape and assault. The Court held that instead of victims bearing the proof burden to show non-consent, the standard should be to consider whether permission to engage in sexual activity was given freely and affirmatively. Permission can be inferred from acts and statements made reasonably and viewed in light of the totality of the evidence.

In criminal matters, the prostration of faculties standard makes sense because sexual assault is a crime of intent. A defendant may argue they weren’t capable of knowing, purposeful conduct if they were extremely intoxicated. The prostration of faculties standards looks at the degree of impairment of the defendant to formulate intent.

However, the New Jersey Supreme Court ruling in C.R. v. M.T. outright rejects this standard where the plaintiff is seeking a TRO (temporary restraining order) or FRO (final restraining order) under SASPA. It is now the defendant who must show consent to engage in sexual activity was offered both freely and affirmatively.

To grant a protection order, the Court also needs to find that it is necessary to protect the possibility of future risk to the safety and well-being of the alleged victim. Still, this will make it much easier for victims of sexual violence in New Jersey to obtain protective orders under SASPA.

The attorneys at our East Brunswick family law offices can help.