Let’s Talk About … Harassment
September 23, 2020
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
In a newly released, unpublished decision, the New Jersey Appellate Division provided helpful insight with regard to several recurring topics that arise when attempting to obtain a Final Restraining Order on the basis of harassment.
While harassment is the most frequently utilized predicate act alleged when victims seek protection, it is also one of the most complicated acts to prove. Harassment comes in many forms and pursuant to our statutes and case law, can be based on a single incident or several combined incidents.
In E.H. v. K.H., the trial court found that the defendant harassed his estranged wife by anonymously mailing his answer and counterclaim from their divorce action to plaintiff’s parents, her coworkers, and a coworker’s wife. The counterclaim contained “graphic and scandalous” allegations about plaintiff.
The defendant appealed in part, contending that:
- His actions did not constitute an act of harassment;
- That the trial court erred in finding that plaintiff had proved harassment;
- And even if he had harassed plaintiff, she did not require ongoing protection because there was no threat of physical violence, which he asserted was required under the Prevention of Domestic Violence Act.
First, although the trial court found that an act of harassment had occurred, the court failed to specify which section of the statute defendant had violated. Given that the harassment statute is composed of several sections with varying material elements, the Appellate Division held that they were unable to meaningfully review the lower court’s findings.
Nevertheless, the Appellate Division clarified that should the trial court choose to find harassment under the third section of the statute, the “alarming conduct” must be defined in more concrete terms. Thus, the alleged repeated communications must “reasonably put the [victim] in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”
Second, the facts of this case present unique, yet not unfamiliar, actions on the part of the defendant. The plaintiff never asserted that defendant directly harassed her; instead, the harassment resulted from defendant’s mailing of the counterclaim to various third-parties. This complicates plaintiff’s ability to prove harassment, as it is her burden to demonstrate that defendant’s actions were done with the purpose to harass her.
Significantly, the Appellate Division recognized that while the mailings were addressed to other individuals, not plaintiff herself, the evidence in the case suggested that plaintiff would feel their impact. Of particular import, where the individual defendant chose to send the counterclaim when compared to his testimony.
Defendant testified that he mailed the counterclaim to plaintiff’s coworkers in a whistleblower capacity, however, that explanation did not hold water when it came to mailing the counterclaim to plaintiff’s parents. Intent to harass can be inferred from the defendant’s conduct and the surrounding circumstances.
While this matter was ultimately remanded for additional findings, the trial court had already determined that there was no justification for defendant’s action other than to harass.
Lastly, and most importantly, the Court in E.H. made it explicitly clear that physical violence is not the only definition of domestic violence and that the PDVA encompasses verbal and non-physical forms of harassment. A Final Restraining Order is issued to prevent further abuse which does not always equate to actual violence.
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