When Sexual Assault Isn’t an Act of Domestic Violence: What You Need to Know

Posted August 27th, 2019 by .

Categories: Legal Topics.

The mere insinuation that sexual assault isn’t an act of domestic violence could easily outrage you. After all, any unwanted sexual contact cries of invasiveness.  So, why wouldn’t sexual assault count as an act of domestic violence?

Just about everyone has their definition as to what constitutes domestic violence. The New Jersey legislature instituted a formal definition with its approval of the Prevention of Domestic Violence Act of 1991.

The actual statutes regarding domestic violence begin at NJSA 2C:25-17.  Notably, the purpose of the laws is to afford victims protection against further harm.  As you most likely know, filing a domestic violence complaint triggers the process for a restraining order.

Meanwhile, NJSA 2C:25-19 outlines nineteen separate acts that the law considers as representative of domestic violence.  All correlate to different sections of New Jersey’s criminal code. Three of offenses suggest crimes of sexual nature. They include:

  • Sexual assault
  • Criminal sexual contact
  • Lewdness

When it comes down to it, intimate partner sexual violence creates fear and most often, everlasting consequences. 

In the meantime, you may wonder where allegations of rape fit in the whole equation. In New Jersey, rape is sexual assault.  All of this information seems to give credence to the fact that sexual assault is an act of domestic violence.

There’s no question that sexual assault, criminal sexual assault, and/or lewdness can constitute acts of domestic violence. However, there’s something else that also factors into the mix.  To be considered an act of domestic violence, the victim must be entitled to protection under the law.

Who are Domestic Violence Victims?

There is violence, and then, there is domestic violence. No doubt, you might already surmise that the latter requires some relationship. The most obvious involves a spouse or a former spouse’s need for protection.  

New Jersey law doesn’t limit the distinction of domestic violence victims to people who are married or were formerly married.  Others who are protected by New Jersey local laws are defined in the same section of the statute that enumerates the acts of domestic violence.

For starters, only certain minors qualify as domestic violence victims. In most cases, it doesn’t apply to minors who have problems with their parents. However, liberated minors could ask the court for a restraining order against a family member.

Of course, that begs the question as to the distinction between and emancipated and unemancipated minor. According to NJSA:2C:25-19(e),  the courts will consider someone under the age of 18 as emancipated in any of the following circumstances:

  • The minor is or has been married.
  • An administrative agency declared the minor as emancipated.
  • Minor has entered the military service.
  • The underage individual is a parent or expecting a child.

Meanwhile, the courts consider other relationships in establishing the classification of victims of domestic violence. Anyone who is a present household member or was at any time a household member falls into this category. Therefore, you could be fifty years old and need the court’s protection against your brother, who you haven’t lived with since you were a child.

Dating Relationships

People who have engaged in any dating relationship also qualify as domestic violence victims. There’s no prerequisite regarding the number of times you dated someone to seek the court’s protection. 

If someone commits one or more of the predicate acts of domestic violence even after one blind date, you have rights.  By that same token, you may want to speak with an experienced domestic violence attorney if you need legal advice defending charges of any kind.

All of this might make some sense to you. However, in the meantime, what happens if you’re not considered a domestic violence victim and someone sexually assaults you?  Does that mean the court won’t issue some order for your protection?

The bottom line is that you could still be entitled to a protective order. It just won’t come from a judge that deals exclusively with domestic violence victims.

Protective Orders for Non-Domestic Violence Victims

Believe it or not, the Sexual Assault Survivor Protection Act (SASPA), only came into effect less than four years ago.  It addresses the fact that not all sexual assault victims qualify for protection under domestic violence laws.

Each and every day, the news reports cases involving sexual assault against people who are not included in any familial or intimate relationship.  A month ago, a New Jersey doctor was charged with sexually assaulting patients.

In the shore area, a New Jersey massage therapist was arrested a second time after another client made allegations of sexual assault.

Both of these are examples of non-intimate relationships from service providers. Meanwhile, you could suffer a sexual assault at the hands of an old friend or acquaintance. You don’t need to qualify as a domestic violence victim to ask the court for protection against future harm.

Restraining orders are granted in cases of domestic violence. Although the result is essentially the same, those who request help under SASPA, ultimately received protection orders. You can read more about Sexual Assault Protection rules here.

Order of Protection Against NJ Clergyman

It was enough to make the recent news at the beginning of the month.  The headlines told of the NJ pastor accused of nonconsensual acts who would no longer be allowed to return to church.

That said, the article came as a result of a recent unpublished decision by the New Jersey Appellate Division. The court decided V.M. on S.G. and used initials to protect the identities of both parties.

According to the court opinion, V.M. not only worked at the church where S.G. was the pastor. She also worked there for eleven years. The pastor was a married man.

On June 28, 2018, V.M. obtained a temporary protective order (TPO) against S.G.  In support of her application for the TPO, V.M. shared the experience that led to its request.

V.M. said that S.G. called her into the church office, pretending to need to speak with her about church business. When she thought the discussion was over, she prepared to leave the room. However, S.G. came from behind his desk and requested a hug.

When V.M. declined, S.G. continued to become more physical. What started as a hug culminated into S.G., pushing her against a wall and touching her in intimate places. S.G. started moving his genitals towards V.M. She observed that the pastor’s pants were wet as a result of his arousal and ejaculation.

The case history states that S.G. attempted to contact V.M. to apologize, but she blocked his efforts. She ultimately filed a criminal complaint in municipal court, where the judge said she could apply for a TPO as long as she didn’t qualify as a victim of domestic violence.

V.M. asserted that she was not dating S.G. and had no other relationship that would mean application under the Prevention of Domestic Violence Act.  V.M. vigorously denied she had any romantic interest in S.G. and that their relationship extended beyond church member and pastor.

After five days of listening to testimony, the court granted V.M. a final protection order (FPO) against S.G. However, the defendant disagreed with the entry and filed an appeal.

On Appeal

For starters, S.G. claimed the court lacked jurisdiction as far as granting the order under SASPA.  He maintained that he and V.M. were in a dating relationship. Therefore, the laws regarding domestic violence should apply.

Meanwhile, one of the charges against the pastor was that he committed an act of lewdness. S.G. asserted that he never exposed his intimate parts. In review, the court agreed that the lower court judge erroneously made a finding of lewdness.

However, it was a harmless error. After all, the defendant didn’t challenge the finding of nonconsensual sexual contact.  And, that was enough to qualify as a predicate act for a protective order.

Lastly, S.G. questioned the need for a protection order based on the risk of future harm.  The Appellate Division relied on the lower court judge as far as the necessary assessments.

The Appellate Division affirmed the decision of the lower court.

Contact Us

Whether it’s a domestic violence complaint or not, anyone facing charges related to sexual misconduct needs experienced legal counsel. Contact the Law Offices of Anthony Carbone to see how we can assist you.

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