Act of 2015
On November 9, 2015 Governor Christie signed into law the Sexual Assault Survivor Protection Act of 2015 with an effective date of May 7, 2016. This new law which is found in the Code of Criminal Justice as N. J. S. A. 2C:14-13, et. seq. for the first time in New Jersey offers protection for persons alleging to be a victim of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct and who are NOT eligible for a restraining order as a “victim of domestic violence”.
Prior to the enactment of this law, a victim of a nonconsensual sexual assault, penetration, lewdness or an attempt at such conduct in order to obtain a restraining order would have to fit in one of the categories under the Prevention of Domestic Violence Act such as a dating relationship, cohabitation, etc. Also, the Prevention of Domestic Violence Act does not apply in most cases to persons under the age of eighteen (18). Or the victim would have to file criminal charges against the perpetrator which for some victims is a difficult choice, particularly since in the context of a criminal case guilt must be proven beyond a reasonable doubt.
The Act permits the alleged victims parent or guardian to file on behalf of the victim in any case where the alleged victim is under the age of 18, has a developmental disability, or a mental disease or defect that renders the alleged victim incapable of understanding the nature of the conduct, including but not limited to being incapable of providing consent.
A victim does not have to file criminal charges against the alleged perpetrator, but may. It will not be held against the victim that he or she did not file criminal charges.
The Applicant (victim) can seek emergency ex parte (without notifying the alleged perpetrator) relief in the Superior Court. The Court may grant any relief necessary to protect the safety and well-being of a victim. The relief is called a Temporary Protective Order. The Court will issue the Temporary Order if the Court believes that the applicant is a victim of a nonconsensual sexual assault, penetration, lewdness or an attempt. The Temporary protective order can include the following:
- prohibiting the perpetrator from committing or attempting to commit any future act of nonconsensual sexual contact, penetration, or lewdness.
- Prohibiting the perpetrator from entering the applicant’s residence, property, school, or place of employment of the victim or the victim’s family or household members, including any specified place frequented by the victim and/or family members.
- Prohibiting any communication directly or indirectly with the victim or family or household members. This includes by telephone, electronic device, etc. and can include family members, employers, fellow employees, or any social service agency providing services to the victim. The intent of this provision is to make sure that the victim is not harassed whether directly or indirectly.
- An order prohibiting stalking or following or threaten to harm, stalk or follow the victim.
- Prohibiting any harassment of the victim including cyber-harassment.
- Any other relief the Court deems appropriate.
It is the job of the local police department where the alleged perpetrator resides to serve a copy of the Temporary Protective Order on the alleged perpetrator.
A hearing for a Final Protective Order shall be help within ten (10) days. The standard of proof at such a hearing is “by a preponderance of the evidence”. That is a low standard. The Court will hear testimony concerning the following factors plus any other factors the Court shall deem relevant:
- The occurrence of one or more acts of nonconsensual sexual contact, sexual penetration or lewdness, or any attempt at such conduct, against the alleged victim; and
- The possibility of future risk to the safety or well-being of the alleged victim.
The Court will not deny relief due to the applicant’s failure to report the incident to law enforcement, the alleged intoxication of the alleged victim, whether or not the victim did or did not leave the premises to avoid such conduct or the absence of signs of physical injury to the victim.
Evidence of the alleged victims previous sexual conduct or manner of dress is strictly inadmissible in any trial.
If a final protective order is issued it shall prohibit:
- The perpetrator from having any contact with the victim;
- Prohibiting the perpetrator from committing any future acts of nonconsensual sexual contact, assault, lewdness or any attempt at such conduct with the victim.
The Final Protective Order may also have all the relief as set forth in the Temporary Protective Order such as prohibition of going to the victims residence, school, place of employment, etc., prohibitions on indirect contact, telephone contact, internet contact, cyber bullying, stalking, harassment, etc.
The Final Protective Order is Permanent unless and until dissolved by an order of a Superior Court Judge.
Whether you are victim seeking protection under the Sexual Assault Survivor Protection Act or a person charged as a perpetrator under the Act, please consider the law offices of John Weichsel, criminal defense lawyer in Hackensack, New Jersey. He will give you experienced, personalized legal representation.