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T.M. v. R.M.W.

Superior Court of New Jersey, Chancery Division, Ocean

October 23, 2018

T.M., Plaintiff,
R.M.W., Defendant.

          Decided: September 28, 2017

          T.M., plaintiff, pro se.

          R.M.W., defendant, pro se.

          RYAN, G. P., J.S.C.

         In this domestic violence case, the court addresses two legal issues of first impression capable of repetition based upon the ever-changing dynamics of interpersonal relationships. First, the court analyzes whether a plaintiff can qualify as a "victim of domestic violence" based upon a "dating relationship" which involves consensual, but sporadic, private sexual relations between adults with few, if any, of the traditional elements of a dating relationship set forth in Andrews v. Rutherford, 363 N.J.Super. 252, 260 (Ch. Div. 2003). Second, the court addresses whether a defendant may assert the defense of consent, N.J.S.A. 2C:2-10, to allegations of simple assault, N.J.S.A. 2C:12-1(a)(1), and harassment by offensive touching, N.J.S.A. 2C:33-4(b), when the plaintiff admittedly agreed to "consensual rough sex" with defendant. Based upon the facts and circumstances of this case, the court answers both questions in the affirmative.


         Plaintiff is a twenty-two year-old female who has known defendant, a twenty-five year-old male, since high school. On September 20, 2017, plaintiff filed a domestic violence civil complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging predicate acts of assault and harassment. A temporary restraining order (TRO) was issued by a Superior Court Judge after plaintiff appeared before a domestic violence hearing officer. As part of her jurisdictional grounds, plaintiff alleged she and defendant "have had a dating relationship" although she later testified she selected that choice because it was the only option potentially applicable. In her complaint, plaintiff alleged she has "had a sexual relationship with defendant that has lasted [for] 8 years." The complaint alleges that on September 18, 2017, defendant came to plaintiffs home "after she invited him over" and "during the act" of "consensual rough sex" defendant told plaintiff that he hated her and "punched her in the face with a closed fist." After plaintiff questioned him about the punch, plaintiff alleges defendant "laughed and punched her again." The allegations of the complaint include a specific admission by plaintiff that she agreed to "have consensual rough sex" with defendant but "him punching her was not part of it."

         Both parties appeared for a final hearing on September 28, 2017. After being advised of their right to counsel and the consequences of a final restraining order, the parties elected to represent themselves and proceed to trial. Both parties testified and cross-examined each other, but called no other witnesses.

         The testimony was in agreement that the parties' sexual relationship began when plaintiff was fifteen years of age and defendant was seventeen. According to plaintiff, they had sex "more frequently" during the first three years of their relationship, roughly between the time plaintiff was fifteen to eighteen years old, followed by a three-year absence of sexual relations. For approximately the last year or so, the parties' relationship has been limited to private encounters involving "consensual rough sex."

         The court questioned plaintiff on the six factors of Andrews, [1] 363 N.J. Super, at 260, to determine whether a dating relationship existed. Plaintiffs testimony established the following: there was little interpersonal bonding; the relationship was mostly based upon sporadic and casual sexual encounters; the relationship, while not seen by either as "dating," lasted eight years; the frequency of the encounters varied from "more frequently" while in high school, to a three-year period of no sexual relations, to approximately once every three months for the last year or more; neither party had any ongoing expectations with respect to the future or permanency of the relationship; the parties did not demonstrate an affirmation of their relationship to others, nor did they hold themselves out to friends and family as "boyfriend and girlfriend." Thus, except for the eight-year duration, most of the Andrews factors weigh against a finding of a "dating relationship." However, the sixth Andrews factor ("any other reasons unique to the case that support or detract from a finding of a 'dating relationship"') requires further analysis based upon the ever-changing limits of interpersonal relationships.

         Plaintiff testified, and defendant agreed, that she texted defendant during the late night hours of September 17 into September 18, 2017, to come to her house for sexual relations.[2] Defendant arrived at plaintiffs home sometime after 1 a.m. Shortly thereafter, in plaintiffs words, the parties engaged in "consensual rough sex." When asked to describe her understanding of the parameters of rough sex, plaintiff testified she consented to "slapping," "hair pulling" and "choking" but she did not consent to being punched "with a closed fist." After several minutes of consensual sexual relations, plaintiff testified defendant punched her in the left side of her jaw with a closed fist. She testified she "was in shock" and "can't remember what it felt like." Nevertheless, she did not stop the encounter. She testified, "we continued to having sex. I was in shock ... I kept going." She estimated the sexual relations continued for another twenty minutes.[3] After the sexual relations ended, plaintiff testified she "repeatedly brought up that he had punched [her] in the face." Plaintiff claimed defendant "brushed it off and attempted to sleep over but she objected and he left her home between 2:30 and 3 a.m.

         When asked to further amplify on the extent of her agreement to have "rough sex," plaintiff testified she "consented to [an] open palm, but [she] did not consent to [a] closed fist." However, she admitted the parties never verbalized or delineated the limits of use of force during relations.

         The complaint included allegations of a past history of domestic violence involving vulgar name calling and verbal abuse. When asked about the history, plaintiff did not detail those allegations in her testimony. Instead, she indicated she and defendant had previously seen each other in June 2017 but it involved only "kissing," not sexual relations. She further testified defendant, during the summer of 2017, had come to her place of employment, a local retail establishment that sells adult products and novelties. She is concerned he will return to her place of employment.

         As to the need for a final restraining order (FRO), plaintiff testified she is "afraid of defendant's impulsivity" and she wants "other women protected" from him.

         Defendant agreed with most of plaintiff s recitation of the history of their relationship, although he described it simply as they "would meet up and have sex" and not see each other for up to six months in between encounters. Contrary to plaintiff, defendant testified the parties did have sexual relations in June 2017 and, about a month later, plaintiff "messaged" the girlfriend of defendant to say he had "cheated on her." On re-direct, plaintiff conceded she did contact defendant's girlfriend and said words to that effect. Sometime that August, defendant went to plaintiffs place of work to question her about contacting his girlfriend. Defendant said plaintiff told him to leave or she would call the police. Both parties agree defendant left voluntarily and has not returned to plaintiffs work.

         As to the events of the early morning hours of September 20, defendant testified plaintiff texted him while he was at work at a local bar. Thereafter, he went to plaintiffs house "to have sex." In his words, they "had a conversation for a few minutes ... we were having sex for about 20 minutes ... I did hit her. . . it was playful ... we have had rough sex ..." for years. The defendant felt the parties had an agreement to be rough and suggested that it is not as if they have written contracts to define their limits. Defendant admitted that after his punch, "she objected to being hit" but then they "had more sex." He testified "[i]t was a closed fist and a tap on the jaw . . . [he] was not intending to harm her . . . there is a fine line to how rough [they] get." When asked to describe that "fine line," defendant testified" [t]here is definitely hitting and slapping and choking." After concluding their sexual relations, defendant testified they had a conversation about "it," referring to the punch. He told plaintiff "it was playful." Defendant promised "not to do it again." However, when he left her home that night, he felt they "had an agreement not to do that again" but would continue to otherwise have rough sex.

         Defendant disputed the need for the entry of a FRO, claiming he never goes to plaintiffs home unless invited and, other than the one time in August to question plaintiff about contacting his girlfriend, defendant has only gone to plaintiff's place of employment to make "a ...

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