More than likely, you already know that a final restraining order (FRO) is pretty serious. First, there must be evidence of at least one predicate act of domestic violence. There is at least one other factor involved as well. The concept of negotiation when it comes to the entry of a restraining order may take you by surprise. Is it really possible to strike up any kind of bargain?
The “Prevention of Domestic Violence Act of 1991” is intended to protect domestic violence victims from further harm. There are nineteen separate acts that NJSA 2C:25-19 defines as related to domestic violence, provided that they are inflicted upon someone who is protected by domestic violence laws. Each of these acts also corresponds to a criminal statute. They are as follows:
- Homicide N.J.S.2C:11-1 et seq.
- Assault N.J.S.2C:12-1
- Terroristic threats N.J.S.2C:12-3
- Kidnapping N.J.S.2C:13-1
- Criminal restraint N.J.S.2C:13-2
- False imprisonment N.J.S.2C:13-3
- Sexual assault N.J.S.2C:14-2
- Criminal sexual contact N.J.S.2C:14-3
- Lewdness N.J.S.2C:14-4
- Criminal mischief N.J.S.2C:17-3
- Burglary N.J.S.2C:18-2
- Criminal trespass N.J.S.2C:18-3
- Criminal trespass N.J.S.2C:18-3
- Harassment N.J.S.2C:33-4
- Stalking P.L.1992, c.209 (C.2C:12-10)
- Criminal coercion N.J.S.2C:13-5
- Robbery N.J.S.2C:15-1
- Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
- Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.)
- Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1)
In order for the court to grant a restraining order, Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006) adds that proof of an act of domestic violence is not enough. The judge must also determine that a restraining order is necessary to prevent further abuse.
So, what does all this have to do with the concept of striking up a bargain as far as the entry of a restraining order? A recent unpublished New Jersey Appellate Court decision provides an interesting viewpoint. Since it is not a published opinion, it only applies to the named parties.
Consent to a Restraining Order?
In the matter of J.L. v. E.A.J. , E.A.J. appealed the entry of an FRO against him. Initials have been used to protect the privacy of both parties, who were in a dating relationship during the alleged act of domestic violence.
According to the history of the case, J.L. complained that E.A.J. harassed her, which would constitute an act of domestic violence. J.L. worked for a fire department and sent E.A.J. a text message indicating that she was drinking alcohol on the firetruck. In turn, E.A.J. screenshot the message and forwarded it to J.L.’s colleagues.
During the hearing regarding the restraining order, J.L. admitted that she was drinking on the firetruck. Meanwhile, E.A.J. claimed that he did not forward the message to harm J.L. Rather, he was looking to protect her. The latter would dispute the requisite finding that E.A.J. “acted with the purpose of harassing the victim.”
Upon review, the Appellate Division found that the lower court judge’s decision that this behavior amounted to harassment was inconsistent. This was based on the statement that “”the intentions of [defendant] were good, but the result resulted in an uncalled-for confrontation with [plaintiff’s work colleagues].”
When it came to addressing the second requirement as established by the Silver matter, there was no evidence produced concerning the chance of further abuse. In fact, J.L. testified that she was not really afraid of her former boyfriend. Instead, she admitted that she was just mad at him.
Even without the second finding, the judge attempted to bargain with E.A.J. First, the judge explained that the law required imposition of a fine. If E.A.J. would consent to entry of an FRO, the judge would only assess a nominal fine. Although E.A.J. refused to consent, the final restraining order was still entered.
In reversing the entry of the restraining order, the Appellate Division cited the judge’s failure to consider whether J.L. was in further jeopardy. As for the idea of negotiating its entry? The upper court summed it up in one sentence. “It is improper for a judge to seek defendant’s consent to the entry of an FRO in exchange for a lower fine.”
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