October 3, 2019
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Gloucester County, Docket No.
Kennedy Brent argued the cause for appellant (Kennedy Brent
Law Firm, attorneys; Nancy Kennedy Brent, on the briefs).
Vazquez argued the cause for respondent (South Jersey Legal
Services, attorneys; Andrew Vazquez and Kenneth Mark Goldman,
on the brief).
Judges Fisher, Gilson and Rose.
C.R. commenced this action under the Sexual Assault Survivor
Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21, seeking to
restrain defendant M.T. from having any communications or
contact with her. SASPA offers an avenue for the issuance of
restraining orders in favor of sexual abuse victims who
cannot obtain relief under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35. See R.L.U. v.
J.P., 457 N.J.Super. 129, 135 (App. Div. 2018).
Testimony adduced at a one-day trial revealed the parties did
not dispute that sexual contact occurred. Whether plaintiff
consented - or was able to consent - to the sexual encounter
was and remains the central issue.
first prong of SASPA requires that the alleged victim
demonstrate - by a preponderance of the evidence, N.J.S.A.
2C:14-16(a) - that a sexual encounter was nonconsensual. Lack
of consent may be demonstrated by proof of a temporary mental
incapacity, N.J.S.A. 2C:14-2(a)(7), which may be generated by
the victim's intoxication, N.J.S.A. 2C:14-1(i). The trial
judge found plaintiff was so intoxicated that she was unable
to consent or object. Having carefully considered the issues
raised in this appeal, we conclude that:
• SASPA draws no distinction between voluntary and
involuntary intoxication when determining whether an alleged
victim lacked the capacity to consent.
• to prove a lack of consent due to intoxication, an
alleged victim must prove a "prostration" of
• a remand is necessary here because the judge did not
apply the prostration of faculties standard when finding
plaintiff was incapable of consenting.
it is necessary to remand for further findings on the first
prong, we choose not to reach defendant's argument about
SASPA's second prong, which permits issuance of a
restraining order because of "the possibility of future
risk to the safety or well-being of the alleged victim."
first prong requires that an alleged victim prove, by a
preponderance of the evidence, "the occurrence of one or
more acts of nonconsensual sexual contact, sexual
penetration, or lewdness, or any attempt at such
conduct." N.J.S.A. 2C:14-16(a)(1). We start by observing
that plaintiff's claim and defendant's response do
not focus on whether sexual contact or sexual penetration did
or did not occur. The ultimate fact in dispute concerned
whether plaintiff consented to the sexual relations that
occurred. This dispute posed separate factual questions: did
plaintiff actually express or otherwise convey her consent to
engage in sexual relations and, if not, was she intoxicated
to a point where she was incapable of consenting.
reviewing the evidence and the trial judge's findings, we
note that certain facts were undisputed. On the evening in
question, plaintiff and a friend, S.S. (Sylvia, a fictitious
name), consumed alcohol while visiting two bars and a
friend's house. At the first stop, a bartender eventually
refused to serve Sylvia, so the two young women were driven
by a friend to another bar. They also called defendant -
Sylvia's cousin - who worked at this last bar; they asked
that he join them. Defendant declined. The women then
continued to drink at the bar until Sylvia was
"cut-off." The bartender texted defendant to come
and pick up his cousin and plaintiff. Defendant, who lived
nearby, soon arrived and told ...