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A Short Essay on Domestic Violence

A Short Essay on Domestic Violence

By: Jeff J. Horn, Esq.


In 1991, New Jersey enacted one of the toughest laws in the nation designed to prevent domestic violence. The law, the procedures that have been implemented, and the protections that have evolved reflect an effort to keep up with the technology and patterns of human relationships.


How does one seek the protections of a domestic violence restraining order?


The basics require that the victim assert that he/she is currently, or one once was, in a familial or dating relationship with the Defendant.  A couple expecting a child would fall under this category.


Next, the victim must assert that the Defendant committed one of the Predicate Acts, the most common being: assault, harassment, sexual assault, criminal mischief, terroristic threats, and cyber harassment.


Historically, a victim of domestic violence was the victim of a physical act by the Defendant. The Predicate Acts were recently amended to include cyber harassment. Abusers no longer need to specifically put their hands on a person to be deemed an offender under the domestic violence statute. Indeed, under harassment and cyber harassment, a victim can receive the protections of a domestic violence restraining order without suffering a physical attack or even suffering a verbal attack from the mouth of the abuser to the ear of the victim. Blowing up the phone of a victim with harsh language, at inconvenient hours, and in a threatening manner can be enough for the victim to receive protection and have the abuser slapped with a final restraining order.


The domestic violence laws are also unique in that a victim may assert that a Defendant has violated a Temporary Restraining Order as grounds for the entry of a Final Restraining Order. In the case of a restraining order, a Temporary Restraining Order can issue on a Monday, the Defendant can violate that Temporary Restraining Order on Tuesday, and the victim can utilize the violation of the Restraining Order as grounds for the entry of a Final Restraining Order, even though the Temporary Restraining Order entered before the violation occurred. This is constitutionally unique.


The domestic violence jurisprudence is non-criminal. Although the Predicate Acts derive from criminal statutes and apply elements of crimes to determine if a Restraining Order should enter, domestic violence cases are handled in Family Part. There are no juries. There are no prosecutors from the State preparing and trying cases. The victim is the Plaintiff and the accused abuser is the Defendant. In that way, they are Family or Civil type cases. The standard of proof is entirely different. In a criminal case, the State must prove beyond a reasonable doubt that the Defendant committed a certain crime. The Defendant cannot be required to testify. In a Family case, proofs are proffered and there is no fifth amendment right against self incrimination. The court can ask questions of the Defendant, and the Plaintiff or Plaintiff’s counsel can ask questions of the Defendant.


Beyond the violation of one of the enumerated offenses set forth above, there is a second element to proving domestic violence:  the need to protect the victim. Cases exist where an offense occurred, but there is no continuing need for protection.


Food for thought:  Children were once taught that “sticks and stones may break my bones but names will never hurt me.” Societal sensibilities have advanced beyond childhood rhymes. Domestic violence is about power and control. That power and control need not be physical in order to be abusive. Patterns of contact between an abuser and a victim need not be physical. They can be verbal, written, sent via electronic message, or conveyed on social media. The magic of connection via electronic media also gives rise to the ability of an abuser to cast an electronic net over a victim.


It is axiomatic that pausing before hitting send is a wise practice. Hitting send and pushing out harassing communications via direct text or through social media channels may be enough to put you in jeopardy as a domestic violence offender. Likewise, a recipient of harassing communications via electronic means may be a legitimate victim under New Jersey law. A pattern of abusive conduct, even strictly electronic, need not be tolerated. You may be entitled to protections under the Prevention of Domestic Violence Act merely by receiving harassing or threatening messages.