Non-Traditional Relationships and Consent as a Defense to Domestic Violence

When a trial court’s decision is published, we know it’s time to listen.   T.M. v. R.M.W. is a good reminder that definitions modernize with our modernizing society, even when dealing with terms and concepts that we use in our daily practice. In this case, the court opined about two integral parts of a domestic violence matter:

1. Underlying relationship to qualify for a restraining order; specifically, the definition of “dating relationship”.
2. Defending against the underlying act alleged in support of the restraining order; specifically, the affirmative defense of consent against assault and harassment allegations.

In T.M., the parties sporadically engaged in consensual “rough sex” over the course of eight years, with a three years hiatus.  Their encounters included hair pulling, slapping and choking. The parties did not have any ground rules, either verbally or in writing.

The plaintiff obtained a Temporary Restraining Order (“TRO”) two days after the defendant punched her with a closed fist during a consensual sexual encounter.  The parties continued having intercourse after the incident – for approximately 20 minutes as the plaintiff acknowledged.  What happened next is where their respective sides of the story begin to change.  In the initial complaint, the plaintiff claimed that when she told the defendant not to punch her again, he laughed it off and then punched her again during this encounter.  During testimony, the defendant claimed that they only had the discussion after the intercourse and he agreed to never punch her again before leaving her house, and he anticipated that they would continue with their relationship going forward.

Dating Relationship

Neither party defined their relationship as dating in the traditional sense during their testimony.  Additionally, the parties did not hold themselves out to the public as having a relationship. In fact, the defendant hid these encounters from his girlfriend and the only time that the defendant appeared at the plaintiff’s home uninvited was after the plaintiff told his girlfriend that the defendant cheated on her.

Utilizing the dating relationship factors defined in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), which we often take for granted when checking off that box on a restraining order, the court allocated the most weight to the length of their relationship, the intimacy involved and the catchall factor as to the uniqueness of their relationship.  Notably the court found:

For the courts to deny this plaintiff victim status could potentially been seen as morally judging a plaintiff who chooses not to engage in a relationship with ‘traditional’ and ‘observable’ indicia of dating.

Additionally, the court opined that a plaintiff enduring abuse in a secret relationship may be even more vulnerable than in a traditional dating relationship.  Thus, the plaintiff prevails on this prong.

Consent

This aspect of the case turned primarily on credibility to determine whether the plaintiff consented to the alleged punch, especially after both parties acknowledged consent for the slapping, hair pulling and choking that would have otherwise qualified as harassment by offensive touching and assault. Although the parties’ testimony differed about the conversation regarding the punch at the end of their encounter, they both acknowledged that they continued engaging in consensual sexual intercourse thereafter.

The court initially found that the plaintiff was credible, noting her candor about the parties’ relationship. However, the defendant became the more credible party after his testimony successfully disputed the plaintiff’s claims about a prior history of domestic violence, which did not exist,  the parties’ conversation after their sexual encounter that evening, and the second punch alleged in the plaintiff’s initial complaint. The court found the defendant so credible that it even repeated his term for the punch as a “tap on the jaw”, after reviewing the stipulated discharge instructions from the plaintiff’s visit to Urgent Care, pictures of the plaintiff’s face on the day of the incident and two days later, and noting that the plaintiff did not have any visible marks during the trial that occurred ten days after the incident.

Erring on the side of caution, the court determined that the issue of consent was a “close call” and analyzed the second prong of a domestic violence analysis, namely whether a Final Restraining Order is necessary. Again turning to credibility, the court determined that the FRO is not necessary to protect the plaintiff and that an FRO cannot be entered to protect the “general public” despite the plaintiff’s (unsubstantiated) claim that other women should be protected from the defendant.

Take-Away

While the plaintiff did not prevail on obtaining a FRO in this sound decision, she did prevail on making a mark in our legal system that traditional relationships are not the only ones requiring attention and protection.  Perhaps this will lead the way to a victim of domestic violence in a private, non-traditional relationship to come forward with his/her story and seek protection.

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Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

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