New Domestic Abuse Statute Explained
As we turn the page on 2021, a myriad of legislative changes impacting family law have passed in New Jersey. While there are many recent changes to discuss, one of the most noteworthy relates to our domestic abuse laws. The importance of keeping our domestic abuse statutes up-to-date and relevant looms large with the movement towards a zero-tolerance policy for domestic violence. The growing ubiquity of electronic devices also necessitates increased technology safeguards in the event of a domestic violence situation. In this section, I will discuss some of the major changes to (and proposals for) the existing New Jersey domestic abuse statute, N.J.S.A. 2C:25-19.
In June 2017, Governor Christie signed into law several amendments which, for the most part, were not controversial, but rather, made common sense changes that provided more clarity on issues that arise routinely in domestic violence matters. One of the most significant changes made was the simple replacement of the term "man or woman" with "person". This change was made to recognize that anyone can be a victim of domestic violence or abuse, irrespective of their sex. It is widely known that there are many males who have been the victim of domestic violence in the past, and even today, have hesitated to come forward due to the public stigma that a man could never be a victim. Readers should recognize that domestic violence does not discriminate and can happen to anyone.
Another significant amendment was to the statutory definition of "cohabitation". For any individual to be covered under the Prevention of Domestic Violence Act (N.J.S.A. 10:6-12), he or she must have previously had a "dating relationship" with the abuser. If not, a plaintiff could still be covered under the statute as a "household member", as long as they reside together and share a household. A 2014 Appellate Division decision had held that two individuals who resided together had to be doing so as a couple , in order to be considered a "household member". The amendment to the statute changes the phrase "as a couple" to "intimate relationship" further clarifying the definition of household member to include non-married individuals living together. Importantly, the law clarifies that cohabitation requires more than roommates (brother/sister), but less than married couples.
Other amendments to the domestic violence statute include an express statement that "economic abuse" is a form of domestic violence. The law also made clear that a temporary restraining order (TRO) and final restraining order (FRO) must be "entered in the statewide domestic violence registry maintained by the Administrative Office of the Courts" which will, among other things, protect victims upon application for a firearms purchaser’s identification card or a permit to carry a handgun. There are also new provisions dealing with sexual assault that criminalize coercing someone to engage in sexual activity through the misuse of pheromones, hormones, or other substances. (In severe cases, criminal penalties can range from a disorderly persons offense to a second-degree offense). It is important in this day and age that our laws reflect up-to-date concerns addressing existing and potential social issues, such as these recent amendments. We need to think about how our world has changed, and whether our existing laws are still relevant. While the state has clarified the definition of "cohabitant" and made clear that "economic abuse" is a form of dating violence, the evolution of social media abuse and cyber-harassment should also be a topic of discussion. Perhaps the domestic violence statute will become more comprehensive in the future to reflect the prevalence of new-age electronic abuse (cyberstalking, revenge porn, etc.), but for now, it is good to know that some recent amendments have enhanced existing protections under our new age domestic abuse laws.
Changes in the Law About Domestic Abuse
In 2015, the state Assembly passed a bill that would broaden the definition of domestic abuse and enhance protections for anyone who is the victim of intimate partner violence. Under A.B. 555, domestic abuse would be redefined to include acts "or threatening behavior" toward a partner’s pets or pets in common. It would also be expanded to include stalking and harassment.
The law would provide "equal resources" to victims of domestic abuse, regardless of their sex, sexual orientation and relationship status with the abuser. It would add to current restrictions on visitation "when the offense is reasonably likely to affect the safety" of the victim, or when the offender uses the visits as a "venue for further abuse."
Under previous laws, victims could only receive certain protections if they were married to, or cohabitating with the abuser. With the broadened definitions, even people who are simply dating or who once dated can apply.
Additional changes to domestic abuse laws include:
- Lowering the threshold number of domestic violence-related arrests required to have a firearm confiscated from people not prohibited from possessing firearms from 2 to 1
- Expanding the definition of "habitual offender" to include second-degree sexual assault
- Requiring probation agents, law enforcement officers and district attorneys statewide to complete specific training to ensure victims are provided the resources and support they need after an arrest occurs.
Who the Changes Affect
The overarching impact of the new laws is to increase the autonomy of the victim and reduce the options available to the perpetrator of domestic abuse. In some senses, it enhances the abilities, rights and access to resources available to victims, making them less reliant on their abuser for housing or financial security. However, more often than not the new laws impact the perpetrator more than the victim with a clear aim of discouraging perpetrators of domestic abuse from reoffending via restrictions on their use of technology and increasing their chance of receiving custodial sentences in more severe cases.
On a practical level, the greatest immediate impact of the new laws has been on perpetrators of domestic abuse who are now prevented from cross-examining their victim in most circumstances at Court. There has been wide criticism of allowing abusers a platform to further harass and intimidate their victim by interrogating them in Court in front of their children and/or wider family in addition to the Judge and their lawyers. In a recent judgement, a legal guardian of a child was able to give evidence that the children had told her that this sort of cross-examination "hurt and embarrassed" them and "took away their hope" of reconciliation between their parents. Disallowing the perpetrator the ability to cross-examine now means that they cannot further harass or intimidate their victim in those proceedings, even if the victim gives consent for this to take place. Other practical changes include the new restraining orders, which are now available in circumstances of harassment as well as non-physical violence. In addition to this, the courts now have powers to impose a restraining order both when an abuser has been acquitted of criminal charges and where the charges against them have been dropped prior to trial. When it comes to coercive and controlling behaviour, the new laws allow for this type of behaviour to be prosecuted if it is committed against a wider class of individuals including former partners. In addition to this, the penalties for coercive and controlling behaviour have increased significantly, with the maximum sentence for individuals being five years’ imprisonment.
Law Enforcement Response to the Changes in Law
A cornerstone of the new procedures that govern the domestic abuse laws are law enforcement and support services, and as such, both entities are making the necessary procedural changes and adaptations to facilitate this new statutory scheme. Law enforcement, for example, will receive training on using the new laws and the tools they provide, as well as how to use new informational materials. The New Jersey State Police, for instance, has already committed to conduct training of officers around the "Strengthen the Voices of Women" campaign that accompanies the new domestic abuse laws. Additionally, they have created a brochure that contains information related to the new laws that will be disseminated at various domestic abuse community events. In fact, the New Jersey State Police are set to host a seminar in January 2015 with a regional nonprofit agency entitled "New Jersey Lead and Advocate Training Seminar for Domestic Violence."
Likewise, other law enforcement agencies are gearing up for the changes. The law enforcement leaders within Bergen County, for example, have formed a "countywide domestic violence response task force" and are gathering to create "uniform response procedures" to these new laws. There is every evidence that the various chambers of commerce, the New Jersey Department of Human Services, the Office on Violence Against Women and other advocacy groups and governmental agencies are similarly making the necessary changes and preparations to meet the new challenges these laws present and coming to determine how they can work together, and if new strategies are needed, to do so effectively.
Legal Remedies for Domestic Abuse
With the enhanced consequences for abusers, there are also new tools available to assist and protect victims. Some of the notable changes include:
- No Longer a "Consent" Crime – Previously, any crime committed with or against an intimate partner could be charged as a "consent" crime. Now, however, intimate partners cannot consent to domestic violence. This protects victims who may otherwise be coerced into saying they consented in order to avoid charges or save someone they love. Consent to domestic violence is no longer a valid defense against prosecution.
- Resources for Victims – Under the new laws , victims will be given information on the resources for domestic abuse victims and how to access them. This must happen at every stage of the process including within the first 24 hours after a crime has been reported.
- Restitution – For the first time, victims of domestic abuse are eligible for restitution against their abuser. This restitution could be ordered to cover such expenses such as rent, relocation assistance, child care costs, medical treatment, counseling, and lost wages. The laws also now allow for support animals to be brought into a domestic abuse setting where the animal can be readily viewed and questioned by law enforcement and the courts.
How the New Domestic Violence Legislation Differs From Past Versions
In comparing the new domestic abuse laws with previously existing statutes, it is immediately obvious that there are significant differences in the manner in which the new laws protect victims. The most important of these is the removal of the marital/cohabitation exception. Under the old law, a victim could successfully obtain a final protective order only if he or she could show that the abuse or threatened harm in question happened within the context of an ongoing spousal or cohabiting relationship. If the violence occurred after a divorce decree or separation of long-time cohabitants, the victim was generally out of luck.
Also, the absence of the marital/cohabitation requirement clears the way for victims to seek protection from abusers with whom they share no legal connection at all. Thus, the new laws contain no requirement of mutuality; in fact, the new laws specifically make abusers punishable for violations of protective orders even if no relationship exists between the parties other than that of abuser/victim. So, for example, two people who briefly dated each other could, if their relationship ended on bad terms, end up in court filing mutual protective orders. The removal of mutuality should further help to prevent victims from losing their lives when protections that are available to them are nixed in court by their abuser simply because no shocks-based relationship existed.
Other improvements include the ability of victims to obtain "temporary" protective orders, which are effective for 7 days. Temporary protective orders (and permanent orders) do not require a hearing at all, making them easy to obtain for urgent situations. In some rural areas, this provision may not apply, as many courts still lack the resources to allow victims to obtain temporary orders so quickly. There are still instances in which victims have been placed at risk due to delayed processing of visitation issues.
Also, there is no longer a requirement that the victim and abuser be cohabitating in order to file for relief. Even if the two parties have never lived together, the victim can seek protection based on the abuser’s possession of a firearm, the presence of a minor child at risk, or the showing of actual physical abuse. This offers further protection against abusers getting off the hook simply because a family member has been slapped or terrorized and the relationship is over.
Further, punitive damages are now mandatory in the kind of criminal or protective order violations that are deliberately hostile towards a child, a pregnant woman, or a person with any disability, even if the victim otherwise suffers no actual damages. In addition, the added presumption that shared custody will not be granted in cases where there is a history of serious violence or stalking adds clarity to the relevant factors that judges take into account (and those that they do not consider).
Overall, while these are all welcome changes, it is equally clear that more progress is still sorely needed. In general, there is still no law against posting intimate images online without consent – no matter whether it is done by an ex-, casual encounter, or stranger. Additionally, the uptake of protection orders is significantly reduced in rural areas, while the average duration of those often falls short of what is practical for those living in isolated regions.
Finally, there are some issues that could be viewed as negative side effects of these laws that could lead to some problems. For example, the lack of mutuality could lead to more false accusations of abuse being passed serious consideration during protective proceedings. If two parties can obtain assault charges against one another and manual orders without verified proof of violence, it is quite possible that an innocent person could lose his or her good name based on allegations simply raised in an effort to gain leverage in a case.
Additionally, a potential uptick in frivolous protective order claims could result in an unnecessary burden on already overloaded courts. This is important because the CDC indicates that 1 in 4 women and 1 in 9 men have been severely physically abused by an intimate partner. In addition, 72% of all total crimes will occur in private spaces.
Reactions from Experts and Advocacy Organizations
In the wake of the expansion of the definition of domestic abuse to include not just physical violence but also emotional and psychological abuse, many groups have responded positively to these changes. For example, the National Network to End Domestic Violence (NNEDV) released a statement saying that it "applauds" the work done by the Maryland General Assembly and the Maryland Coalition Against Sexual Assault in expanding the protections for those affected by domestic abuse within the state. "We applaud the courage of survivors who have shared their stories and the advocates who have worked around the clock to protect them," said a press release from NNEDV. "We urge Maryland Governor Hogan to sign this bill into law." Angela Rose Blackwell, the Chief Executive Officer of Equality Now, believes that "the law as it stands is inadequate and must be reformed" and is in full support of the "stronger" bill "which gives judges the discretion necessary to issue orders to protect women and girls." She advocates for more significant changes to be made, however, and stated that "it was incomprehensible that an act of rape would not provide grounds for a victim to file for a PFA [Protection From Abuse] on behalf of herself and her family." Several lawmakers in Maryland, meanwhile, have believed that the law could go even further. Delegate Thelma Drake believes that the new bill will help even more victims, while Delegate Brian Feldman has commented "If I could wave a magic wand and remove the word ‘rights’ I would do that and just give blanket protections to all victims of domestic violence." These suggestions (and others) have not received formal responses from either the House or Senate. Victims of domestic abuse are urged to contact a law firm who can help them to determine what would be the best course of action for their specific case.
Conclusions About the Updates
The future looks more promising in terms of legislation with the potential for upcoming laws to be enacted that are even more expansive and evidence-based when it comes to dealing with domestic abuse. Even if these measures are not taken, the direction is clear and even these lesser steps illustrate the urgent need to continue vigilance and build advocacy around helping victims and prosecuting their abusers. The changes we have highlighted here are a start on that path. For these changes are a step towards stronger protections and greater recognition of the extreme complexities and costs involved with this on-going issue . We anticipate that new evidence-based measures will continue to emerge as they did in Ohio, where a new Senate Bill was signed into law in September 2016 to enable law enforcement units to provide tracking information to victims of domestic violence. Additionally, scrutiny will likely continue to be leveled at the involvement of social media such as Facebook and Twitter in the perpetuation of abuse, whether through harassment or sharing explicit images without consent. Legislative protection for victims of domestic abuse is a critical and on-going challenge, but one that we and our colleagues take very seriously.