Risk of harm enough to grant sex assault victims stay-away orders, N.J.’s top court says

Sexual assault survivors will be able to more easily obtain protection orders against their attackers under a New Jersey Supreme Court ruling issued Monday.

Survivors seeking temporary or final restraining orders against their abusers can do so under the 2015 Sexual Assault Survivor Protection Act or the 1991 Prevention of Domestic Violence Act. The 1991 law requires survivors to have had some relationship with their abuser and sets a stronger standard that requires judges mulling final restraining orders to consider six factors, including “the existence of immediate danger to person or property.”

Justice Rachel Wainer Apter, writing for the majority, declined to apply the stronger standard to survivors who seek restraining orders under the 2015 law, which requires them merely to show “a possibility of future risk to their safety or well-being.”

The “plain language” of the 2015 law directs a court to consider only whether there is “a chance” that a survivor may be exposed to physical danger or something emotionally unwelcome or unpleasant, Wainer Apter noted.

“Because the language … is centered on the safety or well-being of the victim-survivor, a survivor’s own testimony regarding possible future risks to their safety or emotional well-being can suffice,” she wrote.

The ruling stems from a June 2018 encounter between a woman identified as Clara, then 21, and her friend’s cousin Martin in his garage. He claimed the encounter was consensual, but Clara told police she tried to escape and was too heavily intoxicated to consent. Hospital staff found injuries on her arms, legs, and hip, and Clara sought temporary and final restraining orders.

The case did not result in criminal charges, but Clara sought restraining orders against Martin. A judge ordered him not to have contact with her, and Martin appealed.

Attorney Cheryl Turk Waraas, who represented Clara, applauded Monday’s ruling, saying Clara has “endured six years of legal proceedings to maintain the protective order that she needs.”

“With this decision, the court continues to recognize the deep and devastating impact that sexual assault has on the mental health and emotional wellbeing of a survivor,” Turk Waraas said. “So we’re really pleased that they recognized that, and we hope that the decision creates a clearer and easier path for survivors of sexual assault to access permanent protection.”

The ruling represents the second time the state’s top court has considered the case.

The first time, the court considered the state’s standard for consent, saying consent must be “freely and affirmatively given” in a 2021 opinion that was considered a victory for Clara and other sexual assault survivors.

The court’s second hearing of the case focused on Martin’s challenge of Clara’s bid for a final restraining order. Martin contended that “a possibility of future risk” is too expansive because “unless one or the other party is dead, there is always a possibility, however miniscule, of future risk.” He also argued that he hasn’t tried to contact Clara since the incident and an “irrational fear does not warrant a restraining order.”

In affirming lower court rulings granting the restraining orders, Wainer Apter rejected both arguments.

“Nothing in the plain language of (the law) requires a survivor’s belief about the possibility of future risk to their safety or well-being to be objectively reasonable,” she wrote.

Wainer Apter further noted that restraining orders granted under the 2015 law have a less severe impact on accused abusers than those granted under the 1991 law.

The 2015 law forbids the abuser from having any contact with the victim and could include further relief, like barring them from the victim’s home, school, or work. But stay-away orders issued under the 1991 law prohibit abusers from buying, owning, or using any firearms and could include further relief like requiring the abuser to pay damages to the victim, undergo psychiatric evaluations, and give the victim exclusive possession of their home while continuing to make payments on it, Wainer Apter noted.

Justice Douglas Fasciale issued a concurrence, saying a judge can consider a possibility of future harm, but a survivor doesn’t have to prove it.

Attorney Mary McManus-Smith filed a supporting brief and argued the case on behalf of Legal Services of New Jersey. Monday’s ruling made clearer the differences between the two laws for people seeking protective orders, she said.

“When you don’t have some kind of long-term relationship with somebody, the risk is a different kind of risk. Your concern isn’t that you’re going to go home and be physically abused again,” McManus-Smith said. “This law was designed to do something more than prevent acts of physical violence or prevent the recurrence of that sexual assault — it’s also to provide peace of mind to the survivor with a recognition that there’s more to it than the fear of being sexually assaulted again.”

The 2015 law was expanded and renamed to the Victim’s Assistance and Survivors Protection Act last July.