R.L.U. VS. J.P. (FV-02-1615-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

Citation: Not availableDocket: A-4823-16T1

Court: New Jersey Superior Court; December 3, 2018; New Jersey; State Appellate Court

Original Court Document: View Document

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A final protective order against defendant J.P. was issued on April 19, 2017, under the Sexual Assault Survivor Protection Act (SASPA) following his appeal from an earlier ruling. The case arose after defendant, who had previously pled guilty in 2005 to endangering plaintiff R.L.U. when she was eleven, approached her at a convenience store in March 2017, leading to harassment charges. Plaintiff obtained a temporary protection order after this encounter. During the Family Part hearing, the judge denied defendant's motion to dismiss, asserting that SASPA was a civil statute intended to protect victims and did not violate the ex post facto clause. The judge found credible testimony from plaintiff that defendant had sexually assaulted her in 2005, qualifying as a predicate act under SASPA.

Defendant's appeal contended that SASPA requires that a predicate act occur after its enactment, and thus the protective order imposed an ex post facto penalty, making the application unconstitutional. The appellate court agreed with defendant's interpretation of the statute, leading to a reversal of the Family Part's order without addressing the constitutional argument. The circumstances surrounding defendant's parole revocation related to this protective order were noted but not fully examined in the appeal.

SASPA (Sexual Assault Survivor Protection Act) cannot retroactively impose a restraining order based on conduct that occurred prior to its effective date. Reliance on a 2005 assault as a basis for a 2017 protective order was deemed erroneous. The Family Part judge's factual findings are generally upheld due to her firsthand assessment of witness credibility, but legal questions are reviewed de novo. SASPA, enacted on November 9, 2015, aimed to expand protections for victims of sexual violence beyond those defined under the Prevention of Domestic Violence Act (PDVA), which only covered specific relational contexts. SASPA allows any alleged victim of nonconsensual sexual acts, not qualifying under the PDVA, to seek temporary protective orders from the Superior Court. A judge can issue such an order if good cause is shown and, after a hearing, a final order can be issued if supported by a preponderance of evidence, contingent upon findings of nonconsensual conduct and potential future risk to the victim. While the plaintiff's account was deemed credible and she felt threatened, there was no evidence of actual physical contact from the defendant, rendering the 2005 assault insufficient as a basis for a SASPA order. Definitions under SASPA clarify that "sexual contact," "sexual penetration," and "lewdness" involve intentional physical acts, and protection does not extend to verbal threats or harassment alone.

Newly enacted laws are generally applied prospectively, as established in Johnson v. Roselle EZ Quick LLC, with this principle rooted in fairness and due process. However, this presumption can be overcome if legislative intent for retroactive application is demonstrated. Key factors for retroactivity include: explicit or implicit legislative expression of intent, curative amendments, or when the parties' expectations warrant such application. A retroactive statute requires at least one source of intent, which may be evident in the statute's text or its legislative history.

A statute is deemed curative if it merely clarifies the original statute's intent without significantly altering its scope. In the case of D.C. v. F.R., the court ruled that the PDVA applied prospectively, noting that domestic violence incidents occurring before the amendment were not covered. The SASPA does not indicate retroactive application, and the legislative history supports a prospective approach, as it specifies a delayed effective date. Additionally, SASPA is not curative, as it was designed to expand remedies rather than correct errors in prior legislation. The parties involved did not expect SASPA to apply retroactively. Consequently, the court erred by using the defendant's prior conviction as the basis for a SASPA order, leading to a reversal of the decision. The court did not address the defendant's constitutional arguments related to the ex post facto clause.