The Sexual Assault Survivor Protection Act (SASPA) was passed into law in November 2015 and enacted in May 2016[i]. This Act provides greater protection to victims of sexual offenses by allowing them to obtain a protective order. You can read the law at N.J.S.A. 2C:14-13 et seq.[ii] New Jersey Rules of Court, Rule 5:7B[iii] addresses SASPA.
In November 2019, the Appellate Division of New Jersey, in the case of C.R. v. M.T., Docket No. A-0139-18T4[iv], addressed the issue of an intoxicated victim. The Court indicated that under SASPA, a victim who alleges that voluntary intoxication prevented her from consenting to sexual contact with defendant must prove extremely high level of intoxication, i.e., a "prostration of faculties."
In the case of C.R. v. M.T., the plaintiff commenced an action under SASPA seeking to restrain the defendant from having any communication or contact with her. Testimony from the one-day trial revealed the parties did not dispute that sexual contact occurred. Whether the plaintiff consented - or was able to consent - to the sexual encounter was and remains the central issue.
The first prong of SASPA requires that the alleged victim demonstrate, by a preponderance of the evidence, that a sexual encounter was non-consensual.
Lack of consent may be demonstrated by proof of a temporary mental incapacity, which may be generated by the victim's intoxication. Here, the trial judge found the plaintiff was so intoxicated that she was unable to consent or object.
Having carefully considered the issues raised in this appeal, the Appellate Division concluded:
- SASPA draws no distinction between voluntary and involuntary intoxication when determining whether an alleged victim lacked the capacity to consent.
- To prove a lack of consent due to intoxication, an alleged victim must prove a "prostration of faculties."
What constitutes permission and/or consent?
Permission to engage in sexual relations must be freely given and that willingness may be inferred from acts or statements reasonably viewed in light of the circumstances. In re M.T.S., 129 N.J. 422, 444 (1992).
“Having determined that the victim's intoxication - even when produced voluntarily - may support a finding that the victim could not consent, we consider the level of intoxication required to support such a finding. It is probably best to consider this question from the standpoint of the well-established meaning of "consent": a "voluntary yielding to what another proposes or desires." Black's Law Dictionary 380 (11th ed. 2019). Stated conversely, an "involuntary yielding" is not consent. Because the question of whether the plaintiff was able to voluntarily yield to the defendant's actions requires consideration of her state of mind at the time, we find an appropriate analogy in the intoxication defense available in the criminal justice setting because that defense challenges the actor's ability to form the state of mind required by the offense charged.”
“This certainly does not mean that one ‘who has had a few drinks’ meets the standard.” Cameron, 104 N.J. at 54 (quoting State v. Stasio, 78 N.J. 467, 495 (1979) (Pashman, J., concurring and dissenting)). Far from it. "The mere intake of even large quantities of alcohol will not suffice." Stasio, 78 N.J. 467, 495. When intoxication is proposed as a defense to a criminal charge, it "cannot be established solely by showing that the defendant might not have committed the offense [if] sober." Ibid. (citing Final Report of the New Jersey Criminal Law Revision Commission, Vol. II, Commentary (1971) at 68). In short, the intoxication required to reach the "prostration of faculties" standard must be of "an extremely high level." Cameron, 104 N.J. at 54; see also State v. Mauricio, 117 N.J. 401, 418-19 (1990).”
The Appellate Division concluded, “we conclude that it will not suffice for an alleged victim to prove mere intoxication or that she would not have engaged in sexual relations with the defendant were she not intoxicated. An alleged SASPA victim must prove intoxication to such a degree that her faculties were prostrated to the point of being incapable of consenting to the sexual encounter.”
Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, and 2019, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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