In a recent decision approved for publication, the New Jersey Appellate Division reversed a trial court’s findings that the Sexual Assault Survivor Protection Act, N.J.S.A. 2C:14-13 to -21 (SASPA), could afford protection to victims of sexual assault whose attacks took place prior to the effective date of the Act in 2015. In so holding, the court reversed the entry of a final protection order to a victim of sexual violence, who was assaulted in 2005, ten years prior to the enactment of SASPA.
The case of R.L.U. v. J.P. illustrates this principle. In this case, the defendant pled guilty to endangering the plaintiff in 2005, when she was eleven years old. He was sentenced to three years of jail time and parole for life. In 2017, he interacted with the plaintiff at the convenience store where she worked and verbally threatened her. A few days later, he appeared at the glass window of the plaintiff’s job and stared at her for five seconds before walking away. The plaintiff applied for a temporary order of protection pursuant to SASPA. A final protective order was then entered, after a hearing at which the trial court heard credible testimony that the defendant had intercourse with the plaintiff in 2005. Relying upon that assault as the predicate act, the trial court entered a final order of protection pursuant to SASPA.
The Appellate Division reversed, albeit unwillingly, finding it was “constrained” to hold that SASPA was not intended to be applied retroactively. Explaining the history and purpose of SASPA, the Court identified its purpose to extend protection from domestic violence to those individuals who do not meet the requirements of the Prevention of Domestic Violence Act (PDVA), but are victims of sexual violence. The PDVA is the primary avenue by which an individual can obtain a protective (otherwise known as restraining) order in New Jersey. However, to qualify as a “victim” under the PDVA, one must be a spouse, former spouse, co-parent, or person with whom the defendant had a dating relationship. Accordingly the PDVA does not protect persons subject to sexual violence in a random encounter or in less than dating relationship.
To bridge this gap, SASPA provides that any person alleging to be a victim of nonconsensual sexual contact, sexual penetration or lewdness (or an attempt thereof) who is not a protected victim under the PDVA, may apply for a protective order under SASPA. However, the entry of a final protective order under SASPA requires a finding of nonconsensual sexual contact, penetration or lewdness and the possibility of future risk to the safety or well-being of the victim. Importantly, words, threats or harassment is not enough.
Here, the trial court relied upon the predicate act of intercourse with the plaintiff in 2005. The appellate court reversed, finding that this act could not constitute the predicate act as it occurred prior to SASPA’s enactment in 2015. The court relied upon the absence of any legislative intent that SASPA was designed to apply retroactively and the fact that the PDVA is similarly applied prospectively.
It is important to understand the different laws which protect victims of domestic violence and know that SASPA is a fairly new law which broadens the category of victim who may seek protection from such acts of abuse. However, victims whose offenders are more akin to a stranger must be cognizant of the durational limits imposed by SASPA. That being said, any new acts of sexual violence may give rise to a basis for a protective order under the Act and anyone who is unfortunately a victim of such violence should be aware of the legal rights and protections to which they are entitled.
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Katherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.
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