November 29, 2021

Volume XI, Number 333

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November 29, 2021

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Supreme Court of NJ Sets New Precedent on Sexual Consent and Intoxication

This week, The Supreme Court of New Jersey delivered a monumental win for victims of sexual assault.

The Court’s unanimous decision in C.R. v M.T. set a new precedent for courts in deciding whether an alleged victim of sexual assault was too intoxicated to give consent—more specifically, the ruling clarifies the required burdens of proof in cases where the alleged victim seeks a restraining order under the Sexual Assault Survivor Protection Act of 2015 (SASPA).

SASPA and burdens of proof

SASPA is intended to provide victims of sexual assault with a protective order commonly known as a “restraining order.” Restraining orders provided under SASPA aren’t criminal orders and don’t carry criminal penalties unless violated. Instead, these orders protect the victim’s physical, mental, and emotional well-being by preventing the alleged perpetrator from making further contact with them.

However, individuals seeking a restraining order under SASPA must prove that there was “the occurrence of one or more acts of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct, against the alleged victim”—and in cases where one or both of the parties involved have been consuming alcohol, proving consent or lack of consent becomes considerably more difficult.

This is because a “crime” in its most common definition cannot occur without some level of intent, and a defendant might plausibly be so intoxicated that they’re incapable of purposeful or knowing conduct. For example, the defendant may assert that they were too intoxicated to have formed the mental intent required to be found guilty of sexual assault—this is referred to as the test of “prostration of faculties.”

However, the Supreme Court’s decision in C.R. v M.T. clearly rejects the use of the “prostration of faculties” standard in cases where an alleged victim is seeking protection under SASPA. While the standard still applies to decisions on criminal actions, the Supreme Court’s new ruling holds that the “prostration of faculties” standard is inconsistent with the purpose of SASPA because it judges whether an act was consensual from the defendant’s perspective rather than the perspective of the alleged victim.

As articulated by the Supreme Court, victims seeking protection under SASPA should no longer bear the burden of proving that there was no consent—instead, the defendant is now responsible for showing that permission to “engage in sexual activity was freely and affirmatively given.”

Implications of the Supreme Court ruling

The Supreme Court’s decision in C.R. v M.T. is a win for victims of sexual assault.

Previously, victims seeking a protective order under SASPA may have needed to show that the defendant was not too intoxicated to be found guilty—and this evidence may not have existed beyond the testimony of both parties. Under the Court’s new ruling, however, this burden of proof will no longer prevent victims from getting the protection they need to feel safe and secure.

At the same time, the ruling may increase the risk of SASPA being abused by partners who fabricate or mischaracterize the details of sexual contact after the fact. Persons who reasonably believe they are engaging in consensual sexual acts may now be required to affirmatively prove that consent exists in these cases—and it is an unfortunate and well-known fact that a small percentage of restraining orders are obtained by individuals seeking to malign and hurt the other party.

A final note on SASPA protections: it’s important to be aware that even if the Court finds that nonconsensual sexual contact, penetration, lewdness, or attempts at such conduct have occurred, the Court must also find that the protective order is necessary to protect the “possibility of future risk to the safety and well-being of the alleged victim.”

COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume XI, Number 273
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About this Author

Louis Ragone, Stark and Stark, New Jersey Lawyer, Divorce, Family Issues,
Associate

Louis M. Ragone is an Associate and a member of Stark & Stark’s Divorce Group where he concentrates his practice on all aspects of divorce litigation, including but not limited to child custody, alimony, child support, and equitable distribution issues.  Mr. Ragone handles post-judgment litigation, including cases involving the emancipation of a child, custody or support modification, child support enforcement, college contribution, and relocation applications.  He also represents client in domestic violence matters. 

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