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New Jersey Court Addresses Whether a Plaintiff in a Non-Dating Sexual Relationship Can be Considered a Victim of Domestic Violence

In the published opinion in the matter of T.M. v. R.M.W., FV-15-0506-18, the Family Court in Ocean County addressed a domestic violence case that included some interesting facts and issues offile000799318829-300x200 first impression.

In 2017, the plaintiff filed a domestic violence complaint against the defendant based on allegations of harassment and simple assault.  On her request for a restraining order she indicated that she and the defendant had a sexual relationship over the course of eight years.  The course of their relationship was limited to sporadic, casual encounters of consensual rough sex.  The parties never held themselves out as boyfriend or girlfriend, never developed an interpersonal relationship, never had expectations as to the future of their relationship or the permanence of their relationship. On the night in question, she invited the defendant over and while they were having sex, he laughed at her, told her he hated her, and punched her in the face.  She stated that she agreed to have consensual rough sex, and that this included slapping, choking and hair pulling, but that she did not consent to being punched in the face with a closed fist.  She repeatedly brought up to defendant that he had punched, her but she said he “brushed it off”.  She admitted the parties had never verbalized what their limits were.  She testified that she feared his impulsivity, that she feared he would show up again to the store where she worked, and that she wanted “other women” protected from him.  The defendant seemed to admit to their encounter, stating that she had messaged him at his job in a bar to have sex with her. They had sex, and he admitted to hitting her with a closed fist on the jaw, but stated that it was a playful and not designed to hurt her.  When she asked him about it afterward, he told her that he had meant it playfully and would not do it again.  Defendant denied that a restraining order was necessary as he had never come to the plaintiff’s home uninvited.  He added that after their last sexual encounter, the plaintiff sent a text message to his girlfriend to tell her that he had cheated on her, which led him to go to the store where she worked to talk to her about that.  He had only ever been there before to make an actual purchase. She told him to leave and he never returned there.  The court found that the defendant, who did not minimize his actions, more credible than the plaintiff, who was inconsistent in testifying about whether she had been punched more than once, and whether there was a history of domestic violence.

The court first assessed whether the plaintiff could be considered a “victim” under the Domestic Violence Act given that the parties did not really have a “dating” relationship, as defined by Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch.Div. 2003). The judge noted that the statute includes as a victim “any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship”, but the statute does not define “dating relationship”.  Moreover,  the statute states that its purpose is “to assure the victims of domestic violence the maximum protection from abuse the law can provide.” N.J.S.A. 2C:25-18.  The court concluded that this secret, sexual relationship was sufficient to be considered a “dating” relationship.  The  judge felt the purpose of the domestic violence statute would be thwarted when it protected plaintiffs in non-sexual dating relationships if it did not also apply to plaintiffs who engaged in relationships that were only sexual with the defendant.  The judge did not base his decision on moral judgments on plaintiff’s decisions.

The court noted that the defendant’s actions clearly fell within the grounds of both simple assault and harassment.  The judge then assessed whether the defendant could assert the defense of consent to bodily harm pursuant to N.J.S.A. 2C:2-10(b).   The judge found that the defendant could assert this defense.  He noted that he could see that punching could cross the line, but that the plaintiff’s actions in which she continued having sex for another 20 minutes, and the parties’ failure to verbalize what their limits were belied her claim of non-consent.  The judge did not see much difference between a hard slap to the face and a lighter punch to the jaw, and that it was a “close call” as to whether the punch occurring during consensual rough sex was appropriate.

The judge concluded that pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), a final restraining order was not necessary in the context of these parties’ relationship.  There was no history of domestic violence between them. There is no proof of prior threats, harassment or abuse.  There was no evidence of an immediate danger to persons or property.  The parties’ history had a pattern of consensual rough sex, not abuse.  The court did not find that the plaintiff’s concern about the defendant’s “impulsivity” was supported by the facts.   As such, no final restraining order was entered and the temporary restraining order was vacated.

Domestic violence can be tricky as they can be particularly fact sensitive.   The law office of James P. Yudes, A Professional Corporation can help you navigate these waters.