The Sexual Assault Survivor Protection Act

The Sexual Assault Survivor Protection Act

December 13, 2019
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

What is Sexual Assault Survivor Protection Act, and who does it apply to?

Two recent cases, one published and one unpublished, from the New Jersey Appellate Division shine some light on the little-known statute that aims to protect victims of sexual assault. The Sexual Assault Survivor Protection Act (SASPA) offers protection for victims of unwanted sexual contact not covered under the Prevention of Domestic Violence Act (PDVA).

What is PDVA, and who does it apply to?

While the PDVA has broad applicability in allowing victims of abuse to obtain a Temporary or Final Restraining Order, it only extends to individuals who presently or previously dated, have a child in common, or were or are household members.

This foreclosed the option of obtaining a protective order against an abuser with whom the victim did not know, is a member of the clergy, a co-worker, or a casual acquaintance – – without police intervention. SASPA now allows victims of sexual crimes to obtain a Protective Order, temporary or final, preventing the offender from having any contact with the victim in person, electronically, or through a third party.

Whereas the PDVA applies to sexual and non-sexual offenses alike, including:

  • Harassment
  • Sexual assault
  • Terroristic threats, etc.,

Sexual Assault Survivor Protection Act pertains to “nonconsensual sexual contact, sexual penetration, lewdness, or any attempt at such conduct.” N.J.S.A. 2C:14-14. The requirements for obtaining a final restraining order or a final protective order are fairly analogous; the court must find that an alleged predicate act took place and that the victim requires protection going forward to prevent future harm.

In the unpublished case of V.M. v. S.G., the Appellate Division affirmed the issuance of a final protective order against a church pastor by one of his congregants. Given that the victim could not obtain a restraining order under the PDVA, as she had no qualifying relationship with the pastor, she turned to SASPA for protection. The victim, who viewed the pastor as a father figure and mentor, averred that the pastor had most recently pushed her up against the wall and touched her in a sexual manner without her consent.

Of particular interest, the pastor’s abuse had been ongoing for the better portion of a decade, and given the victim’s reluctance to press criminal charges, SASPA’s enactment in 2016 finally gave her an outlet to protect herself in a way she felt comfortable. As is the case with many victims, even the following abuse, they do not want to, in turn, harm their abusers by filing criminal charges and potentially having them serve time in jail or prison.

In the second case, C.R. v. M.T., the Appellate Division expounded on one party’s ability to provide consent during a sexual encounter when that party is intoxicated, focusing solely on the first prong of obtaining protection. The parties agreed that a sexual encounter had taken place, thus the dispute centered around whether the plaintiff was capable of providing consent given her intoxication, and if able, had she done so. The trial court found that the plaintiff was so intoxicated she was not only unable to consent, but she could not object either.

Under SASPA a sexual assault victim is “one who the actor knew or should have known” was “mentally incapacitated” at the time of the encounter. Sexual Assault Survivor Protection Act defines mental incapacitation as “that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance…” The Appellate Division concluded first, that SASPA did not discern between voluntary and involuntary intoxication when determining a victim’s capacity to consent to a sexual encounter; and second, in order to prove a lack of consent as a result of intoxication, the victim must prove a “prostration” of “faculties.”

The Court explained that consummation of large quantities alone was insufficient, but that the level of intoxication must be so high, as to render the victim incapable of consenting to the sexual encounter. The Appellate Division provided further guidance for trial courts when determining the level of intoxication, including “the actor’s conduct as perceived by others,” what the actor said and the manner in which they said it, the appearance of the actor, the actor’s coordination or lack thereof, and whether there was an odor of alcohol emanating from the actor.

Ultimately, the matter was remanded to the trial court; however, the case provided clarity and guidance when it comes to sexual encounters and consent to the same. It is important to understand the different options afforded to victims seeking protection from their abusers and the legal rights arising from both the PDVA and SASPA.

At Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC, our team of family lawyers in New Jersey are here to help you. Contact us today.