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C.R. v. M.T.

Superior Court of New Jersey, Appellate Division

November 13, 2019

C.R., Plaintiff-Respondent,
v.
M.T., Defendant-Appellant.

          Argued October 3, 2019

          On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FV-08-0021-19.

          Nancy Kennedy Brent argued the cause for appellant (Kennedy Brent Law Firm, attorneys; Nancy Kennedy Brent, on the briefs).

          Andrew Vazquez argued the cause for respondent (South Jersey Legal Services, attorneys; Andrew Vazquez and Kenneth Mark Goldman, on the brief).

          Before Judges Fisher, Gilson and Rose.

          OPINION

          FISHER, P.J.A.D.

         Plaintiff 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.

         The 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 "faculties."
• a remand is necessary here because the judge did not apply the prostration of faculties standard when finding plaintiff was incapable of consenting.

         Because 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." N.J.S.A. 2C:14-16(a)(2).

         SASPA's 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.

         In 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 ...


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