A plaintiff seeking an FRO under the PDVA must establish by a preponderance of the evidence that the defendant committed an act of domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006); Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). The PDVA defines domestic violence as the commission of any one or more of the fourteen crimes and offenses enumerated in N.J.S.A. 2C:25-19a. Among the fourteen predicate offenses are assault under N.J.S.A. 2C:12-1, and harassment under N.J.S.A. 2C:33-4 that, if proven, may entitle a plaintiff to the entry of an FRO. N.J.S.A. 2C:25-19a(2), (13); N.J.S.A. 2C:25-29b. The court must then find that an FRO is needed for the plaintiff’s protection. Silver, supra, 387 N.J. Super. at 127.

A person is guilty of simple assault if he or she “(1) [a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (2) [n]egligently causes bodily injury to another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear of imminent serious bodily injury.” N.J.S.A. 2C:12-1a. A person is guilty of harassment when “with purpose to harass another,” he or she

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

[N.J.S.A. 2C:33-4a.]

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Simple assault originally appeared on NJ Family Issues on December 19, 2011.

N.J.S.A. 2C:12-1(a)(1) makes a person guilty of assault if he or she “attempts to cause or purposely, knowingly or recklessly causes bodily injury to another.” Bodily injury is defined as “physical pain, illness or any impairment of physical condition.” N.J.S.A. 2C:11-1(a).

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Bodily injury is defined as physical pain, illness or any impairment of physical condition originally appeared on NJ Family Issues on March 14, 2011.

The disorderly persons offense of simple assault is defined as “[a]ttempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another; or . . . [a]ttempt[ing] by physical menace to put another in fear of imminent serious bodily injury.” N.J.S.A. 2C:12-1(a)(1), (3). “Bodily injury is defined as ‘physical pain, illness or any impairment of physical condition.’ N.J.S.A. 2C:11-1(a). Not much is required to show bodily injury.” N.B v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997) (quoting New Jersey v. Bazin, 912 F. Supp. 106, 115 (D.N.J. 1995)). “‘Even the slightest physical contact, if done intentionally, is considered a simple assault under New Jersey law.’” Ibid.

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Simple assault is defined as attempting to cause or purposely, knowingly or recklessly causing bodily injury to another; or attempting by physical menace to put another in fear of imminent serious bodily injury originally appeared on NJ Family Issues on October 25, 2010.

The assault statute under New Jersey’s Code of Criminal Justice states in relevant part:

a. Simple assault. A person is guilty of assault if he:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

[N.J.S.A. 2C:12-1a.]

The Code of Criminal Justice explains the meaning of “recklessly”:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

[N.J.S.A. 2C:2-2b(3).]

An actor [is] criminally responsible for the result of his conduct, even though the person injured is not his intended victim. State in the Interest of S.B., 333 N.J. Super. 236, 243 (App. Div. 2000).

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An actor is criminally responsible for the result of his conduct, even though the person injured is not his intended victim originally appeared on NJ Family Issues on October 8, 2010.

N.J.S.A. 2C:14-2c provides that “[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person” under several circumstances, including when “[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury.” N.J.S.A. 2C:14-2c(1).

To establish physical force for the purposes of N.J.S.A. 2C:14-2, the plaintiff does not have to prove force in addition to “that necessary for penetration so long as the penetration was accomplished ‘in the absence of what a reasonable person would believe to be affirmative and freely-given permission.’” State v. Velasquez, 391 N.J. Super. 291, 319 (App. Div. 2007) (quoting State in the Interest of M.T.S., 129 N.J. 422, 444 (1992)).

N.J.S.A. 2C:14-3b provides that “[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c.”

“Sexual contact” is defined as “an intentional touching by the . . . actor, either directly or through clothing, of the victim’s . . . intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S.A. 2C:14-1.

Neither the sexual assault statute nor the criminal sexual contact statute specifies the mental state that must be demonstrated in order to establish the defendant’s criminal intent.

N.J.S.A. 2C:2-2c(3) establishes the principle that criminal statutes that do not designate a specific culpability requirement should be construed as requiring knowing conduct.

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist . . . .

[N.J.S.A. 2C:2-2b(2).]

A defendant’s conduct in engaging in nonconsensual sexual intercourse was knowing, regardless of his view that his religion permitted him to act as he did.

See related Blog Post by Eric S. Solotoff, Esq.

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Even if you believe that your religion allows you to have unconsented sexual contact with your spouse, such action is domestic violence originally appeared on NJ Family Issues on July 23, 2010.

When determining whether to grant an FRO pursuant to the PDVA, the judge must apply the two-prong test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). “First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred.” Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.

In performing that function, “the Act does require that ‘acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties.’” Cesare, supra, 154 N.J. at 402 (quoting Peranio [v. Peranio], 280 N.J. Super. [47,] 54 [(1995)]). Stated differently, when determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property. See N.J.S.A. 2C:25-29a(1) and (2).
[Id. at 125-26.]

N.J.S.A. 2C:25-29a provides that “the standard for proving the allegations in the complaint shall be by a preponderance of the evidence.”

Subsection (b) of N.J.S.A. 2C:33-4, provides:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:
. . . .
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so[.]

“A complaint charging harassment in the domestic violence context” requires that a court “consider the totality of the circumstances to determine whether the harassment statute has been violated,” including “an evaluation of the plaintiff’s circumstances.” Cesare, supra, 154 N.J. at 404 (citing State v. Hoffman, 149 N.J. 564, 584-85 (1997)). “A finding of a purpose to harass may be inferred from the evidence presented” and “[c]ommon sense and experience may inform that determination.” Hoffman, supra, 149 N.J. at 577.

N.J.S.A. 2C:12-1a defines assault as “purposely, knowingly or recklessly caus[ing] bodily injury to another.”

After the plaintiff establishes a predicate act by a preponderance of the evidence, the second inquiry is to determine whether a restraining order should be issued. Silver, supra, 387 N.J. Super. at 127. Although this determination “is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or to prevent further abuse.” Ibid. (citing N.J.S.A. 2C:25-29b). In this respect, the PDVA provides:

The court shall consider but not be limited to the following factors:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim’s safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29a.]

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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When determining whether a restraining order should be issued based on an act of assault or, for that matter, any of the predicate acts, the court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property originally appeared on NJ Family Issues on March 2, 2010.

A person is guilty of simple assault, as defined in N.J.S.A. 2C:12-1(a)(1), if he “[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]”

Self-defense, pursuant to N.J.S.A. 2C:3-4, is:

the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

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Domestic Violence — Assault and Self Defense originally appeared on NJ Family Issues on January 7, 2010.

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Assault and terroristic threats are two of the predicate acts “which comprise domestic violence” under the Act, N.J.S.A. 2C:25-19.

Defendant has the burden to presented evidence to support a claim of self-defense. See N.J.S.A. 2C:3-4; State v. Aguiar, 322 N.J. Super. 175, 179-80 (App. Div. 1999).

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A defendant has the burden to presented evidence to support a claim of self-defense originally appeared on NJ Family Issues on August 10, 2009.

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“[T]ortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of excessive behavior such as gross negligence, recklessness, wantonness, and the like,” are excepted from interspousal immunity. Tevis v. Tevis, 79 N.J. 422, 426 (1979). Thus, some non-economic marital fault may be compensated in appropriate cases. Id. at 434.

Here, although plaintiff testified to several acts of abuse by defendant during the marriage, she produced no medical proof explaining her injuries or establishing the cause thereof. As the judge noted, her documented injuries could have resulted from plaintiff’s myriad health problems. Thus, absent the requisite medical proof as to the nature, origin and cause of plaintiff’s injuries, the dismissal of her Tevis claim was proper.


[See related Blog Post, published in the New Jersey Family Law blog.]

Some non-economic marital fault may be compensated in appropriate cases; but, Plaintiff must present medical proof explaining her injuries or establishing the cause thereof originally appeared on NJ Family Issues on April 28, 2009.

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A simple assault, in violation of N.J.S.A. 2C:12-1(a)(1), is one of the predicate offenses for a finding of “domestic violence” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

However, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19 does not “automatically . . . warrant the issuance of a domestic violence [restraining] order.” Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995). The determination whether such an order should be issued must be made “in light of the previous history of violence between the parties including threats, harassment and physical abuse, and in light of whether immediate danger to person or property is present.” Corrente, supra, 281 N.J. Super. at 248; Peranio, supra, 280 N.J. Super. at 54.

This does not mean that a court must find a prior history of domestic violence to enter a domestic violence restraining order. “[O]ne sufficiently egregious action [may] constitute domestic violence under the Act, even with no history of abuse between the parties[.]” Cesare v. Cesare, 154 N.J. 394, 402 (1998). But even though “a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation, a court must at least consider that factor in the course of its analysis.” Ibid.; see also Kamen v. Egan, 322 N.J. Super. 222, 227-29 (App. Div. 1999).

Thus, the decision whether to issue a final domestic violence restraining order involves a two-step analysis. First, the court must determine whether the defendant committed one of the predicate acts set forth in N.J.S.A. 2C:25-19 against a spouse or other person protected by the Act. Second, the court must determine whether in light of all the circumstances, including the nature of the predicate act, any past history of domestic violence and the entire relationship between the parties, “a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence.” Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006); see also Cesare, supra, 154 N.J. at 402-05.

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Is a domestic violence restraining order necessary to protect plaintiff from immediate danger or further acts of domestic violence? originally appeared on NJ Family Issues on March 26, 2009.