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New Jersey Supreme Court Redefines Consent and Intoxication in Sexual Assault Restraining Order Cases

Published: October 25, 2021

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Proving Consent in NJ Sexual Assault Restraining Order Trials

Proving Consent in Sexual Assault Restraining Order Trial NJThe public’s view of sexual assault and consent has transformed over the decades. Heightened awareness of the victim’s shame and blame in the judicial system grows each decade, primarily through the recent “me too” movement. Moreover, definitions and clarifications of what it means to consent to sexual activity circulate as popular memes across social media because of a newly emerging realization that sexual assault victims fail to report sexual assault. They fear they will suffer insult in the eyes of the public and legal system. Perhaps inequalities between the sexes and outdated attitudes explain the older case decisions and laws that burden the victim with proving they did not consent to sexual activity when an accused is on trial for sexual assault. The result of the shifting tide now places the burden on the defendant to show that the victim consented, honoring the victim’s perspective of consent in cases involving sexual assault restraining orders.

In a late September decision titled C.R. v. M.T, the New Jersey Supreme Court ruled that the victim’s perspective of consent takes precedence over the defendant’s mental state when consent is at issue in granting a sex crime restraining order. The court considered whether an intoxicated victim could give consent to sexual engagement. In the underlying legal case, the victim sought protection under the Sexual Assault Survivor Protection Act (SASPA), which allows a sexual assault victim to get a restraining order against the accused perpetrator. A sex crime restraining order prevents the accused from contacting or coming near the victim under threat of criminal punishment.

Under SASPA, a plaintiff must prove to the court that they suffered at least one unconsented-to sexual act, such as criminal sexual contact, penetration, or lewdness, to get the protective order. They must also prove that the order is necessary to protect the victim in the future.

Who is Required to Prove Sexual Consent when Intoxication is at Issue

In prior court rulings involving sexual assault, the court measured the question of consent by the prostration of faculties standard. When the victim was too intoxicated to give consent, the court considered the defendant’s mental state on the question of consent at the time of the sexual act. However, in State in Interest of M.T.S., 129 N.J. 422 (1992), the court focused on the victim’s perspective of consent to determine free and affirmative consent in a sexual assault case, and this standard is what the current Supreme Court decision relied upon in its decision. The upshot of the C.R. v. M.T. decision is the burden of proof shift on the issue of consent, setting a precedent for sexual assault restraining orders under SASPA in the future.

What the Decision Means for Victims

The court’s decision specifically cited the justification for the decision. They remarked about ending the deflection of blame from the accused to the victim. Blaming the victim or excusing the accused for being too drunk to be responsible for their action often prevented victims under SASPA from getting court protection. After all, most sexual assault cases rest on he-said-she-said testimony, making it hard for victims to prove the non-consensual element necessary to get the security and safety they seek.

For those sexual assault survivors who seek the protection of their physical, mental, and emotional health with a sexual assault restraining order, the Supreme Court’s ruling is significant. It means they can go into court more confident that they will be believed and secure the court’s protection. With the help of an attorney experienced with sexual assault restraining orders, they can petition the court and tell the truth about what happened to them. Just like in domestic violence final restraining order hearings, the judge gives the plaintiff the benefit of the doubt, at least initially, that a violent incident that threatened the victim’s wellbeing occurred. The burden falls on the accused to challenge the plaintiff’s version. An experienced attorney can help a victim present the evidence of the non-consensual sexual acts and the continuing threat to their health and safety. And now that the defendant has the burden of proving consent, an experienced litigator can cross-examine the defendant to raise doubt in a judge’s mind.

What the Ruling Means for Defendants

While this ruling is a victory for sexual assault victims, it may also open the door to abuse by unscrupulous plaintiffs. Alleged victims with ulterior motives, like revenge or malintent, may now have an opportunity to lie, exaggerate, and mislead given the court’s indulgence to their version of the assault facts. It may be a trap for those who genuinely believed they were equal participants in consensual acts. In other words, SASPA abuse may lead to an inverse victim, not the one seeking protection.

Now the accused must affirmatively show consent to sexual acts to counter false accusations in an improper sex crime protective order request. Of course, the plaintiff must still prove to the judge that the order is necessary to prevent future harmful acts. That may be difficult to do without evidence of continuing threats or improper sexual advances. Fortunately, having an experienced attorney by your side when you have been served with a sex crime restraining order means you can challenge all inaccurate or untrue assertions with your own legal defense strategy. Having a lawyer to cross-examine the alleged victim and demonstrate lack of credibility or inadequate evidence from the other party can help a falsely accused defendant avoid the harmful effects of having a permanent sexual assault protection order against them.

Seek Legal Counsel if You are Involved in a Sex Offense Protection Order Case in NJ

No matter which side of the court room you are on, a sexual crime restraining order proceeding demands the best possible representation. In New Jersey, the implications of these court orders for plaintiffs and defendants are vast, meaning the outcome could affect your life for years to come. Whether you need to protect your good name and your freedom, or you need to protect your safety and well-being, the result of your hearing looms large. To speak with a lawyer who consistently and confidently navigates the complexities of sexual assault restraining order matters on behalf of clients in courts across New Jersey, call us at 908-336-5008 today. A member of our legal team is ready to offer you individual guidance and assistance in a free and confidential consultation.

Filed under: Sex Crimes, Sexual Assault Restraining Orders

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Travis J. Tormey is a distinguished member of the legal community and a respected legal resource on domestic violence. He has been featured in a variety of prominent publications and media outlets, including CBS radio, Aol News, the Asbury Park Press,, and the Daily Record. Mr. Tormey has also been recognized as one of the the top criminal attorneys under 40 years of age by the National Trial Lawyers Association and the National Academy of Criminal Defense Attorneys. Whether representing victims or the wrongly accused, Travis remains passionately committed to protecting the rights of the innocent.

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