A short article was recently published focusing on some alleged faults in New Jersey’s domestic violence system and commenting on a 2016 report issued by the NJ Supreme Court Ad Hoc Committee on Domestic Violence. It’s been reported that in 2014, more than 79 percent of domestic violence complaints in municipal court were dismissed — much higher than the dismissal rate (46 percent) for other disorderly persons cases. In addition, the report recommended better training for prosecutors, judges, and judicial personnel, as well as expanding the use of domestic violence advocates in municipal court proceedings.
In addition, the article also briefly discussed comments made by Nicole Morella, director of public policy for the New Jersey Coalition to End Domestic Violence, who informed NJ101.5 that the committee spotted a gap in the availability of services for victims on the local levels. Morelia went on to state that “[a]s victims engage in the systems and in the procedures…they can actually be putting themselves in more danger, especially if the system isn’t holding the defendant accountable or even detaining the defendant in cases where there’s real danger. It’s important that victims have access to an advocate who can help them safely plan and keep them informed of the process as it’s going forward.”
With that in mind, let’s examine how our system works and unfolds:
Domestic Violence in New Jersey is governed by the Prevention of Domestic Violence Act, which is codified under N.J.S.A. 2C:25-17. Generally, a domestic violence case is opened by the filing of a complaint, which can occur by contacting the police or the court. If the police are contacted, officers are obligated to respond and assess whether the complaint is credible. If the police find probable cause to believe an incident has occurred, they must arrest the alleged offender. In addition to arresting the individual, the police are also authorized to seize any firearms or weapons that may expose the alleged victim to serious bodily injury.
Following the arrest, the arresting officers will contact a Family Part Judge or a Municipal Judge, who, in turn, will determine whether an order of protection is needed for the alleged victim. An order in the form of a Temporary Restraining Order (TRO) when it appears necessary to protect the life, health, or well-being of the alleged victim. Furthermore, it is worth noting that, in addition to the domestic violence complaint, a criminal complaint can be issued against the alleged offender.
The Temporary Restraining Order can bar the individual from communicating with the complainant, returning to his or her home, and from seeing or speaking to his or her children. Moreover, the Judge is also authorized to detain to individual and set bail as a condition of his or her release.
From there, the alleged offender is served with the Temporary Restraining Order which shall list the types of restraints entered by the Court. The Order will also notify the individual of hearing date, which is scheduled to occur within 10 days. The purpose of the hearing date is to determine whether a Final Permanent Restraining Order is needed. In New Jersey, restraining orders are permanent, life-long orders and cannot be vacated unless the victim consents or a Family Part Judge determines that the order of protection is no longer needed.
With regard to the hearing date, at the court proceedings, the Judge must answer two questions in the affirmative if he or she wishes to enter a Final Restraining Order. The first question is whether a predicate act of domestic violence occurred. The predicate acts in NJ are as follows:
- Terroristic threats
- Criminal restraint
- False imprisonment
- Sexual assault
- Criminal sexual contact
- Criminal mischief
- Criminal trespass
If the Judge is convinced by a preponderance of the evidence that one or more of the listed predicate offenses occurred, the court then moves on to question two: whether a permanent and final order of protection is needed to protect the alleged victim from future acts of domestic violence. See Silver v. Silver, 387 N.J. Super. 112 (2006); Cesare v. Cesare, 54 N.J. 393 (1998); Corrente v. Corrente 281 N.J. Super 243 (1995). After making this second determination, the court will examine the severity of the underlying offense coupled with the parties’ past history and whether there were any prior acts of domestic violence.
Putting aside the hearing, many domestic violence disputes are resolved without the court intervening. One common way is for the parties to enter into what is called Civil Restraints. A Civil Restraint is a contract between the parties wherein the victim agrees to dismiss the complaint and thus, the offender does not have to fear having a restraining order on their record; in consideration, the offender agrees not to contact the victim. However, please note that a civil restraint agreement is not as powerful as a restraining order since it does not authorize the police or the courts to intervene if the offender violates it. The legal recourse for the victim is to notify the Court that the offender breached the agreement, and then previous case can be reopened.
Another common way that domestic violence disputes can be resolved is through a Conditional Dismissal. Similar to above, a conditional dismissal is an agreement that the offender will not contact the victim; in exchange, the victim agrees to dismiss the complaint. However, there are some differences. First, a Conditional Dismissal is only available if the domestic violence matter creates a criminal complaint. Second, most Conditional Dismissals are only considered if the matter is proceeding in municipal court. Third, Conditional Dismissals have a set timeframe: for instance, an agreement can be negotiated that if the offender does not contact the victim or reoffend for six months, the matter will be dismissed. Lastly, the municipal prosecutor also has to agree to the dismissal.