T.M. v. R.M.W.
T.M. v. R.M.W.
Opinion of the Court
*449In this domestic violence case, the court addresses two legal issues of first impression capable of repetition based upon the ever-changing dynamics of interpersonal relationships. First, the court analyzes whether a plaintiff can qualify as a "victim of domestic violence" based upon a "dating relationship" which involves *450consensual, but sporadic, private sexual relations between adults with few, if any, of the traditional elements of a dating relationship set forth in Andrews v. Rutherford,
I.
Plaintiff is a twenty-two year-old female who has known defendant, a twenty-five year-old male, since high school. On September 20, 2017, plaintiff filed a domestic violence civil complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging predicate acts of assault and harassment. A temporary restraining order (TRO) was issued by a Superior Court Judge after plaintiff appeared before a domestic violence hearing officer. As part of her jurisdictional grounds, plaintiff alleged she and defendant "have had a dating relationship" although she later testified she selected that choice because it was the only option potentially applicable. In her complaint, plaintiff alleged she has "had a sexual relationship with defendant that has lasted [for] 8 years." The complaint alleges that on September 18, 2017, defendant came to plaintiff's home "after she invited him over" and "during the act" of "consensual rough sex" defendant told plaintiff that he hated her and "punched her in the face with a closed fist." After plaintiff questioned him about the punch, plaintiff alleges defendant "laughed and punched her again." The allegations of the complaint include a specific admission by plaintiff that she agreed to "have consensual rough sex" with defendant but "him punching her was not part of it."
Both parties appeared for a final hearing on September 28, 2017. After being advised of their right to counsel and the *451consequences of a final restraining order, the parties elected to represent themselves and proceed to trial. Both parties testified and cross-examined each other, but called no other witnesses.
The testimony was in agreement that the parties' sexual relationship began when plaintiff was fifteen years of age and defendant was seventeen. According to plaintiff, they had sex "more frequently" during the first three years of their relationship, roughly between the time plaintiff was fifteen to eighteen years old, followed by a three-year absence of sexual relations. For approximately the last year or so, the parties' relationship has been limited to private encounters involving "consensual rough sex."
The court questioned plaintiff on the six factors of Andrews,
*155at 260,
Plaintiff testified, and defendant agreed, that she texted defendant during the late night hours of September 17 into September 18, 2017, to come to her house for sexual relations.
When asked to further amplify on the extent of her agreement to have "rough sex," plaintiff testified she "consented to [an] open palm, but [she] did not consent to [a] closed fist." However, she admitted the parties never verbalized or delineated the limits of use of force during relations.
The complaint included allegations of a past history of domestic violence involving vulgar name calling and verbal abuse. When *453asked about the history, plaintiff did not detail those allegations in her testimony. *156Instead, she indicated she and defendant had previously seen each other in June 2017 but it involved only "kissing," not sexual relations. She further testified defendant, during the summer of 2017, had come to her place of employment, a local retail establishment that sells adult products and novelties. She is concerned he will return to her place of employment.
As to the need for a final restraining order (FRO), plaintiff testified she is "afraid of defendant's impulsivity" and she wants "other women protected" from him.
Defendant agreed with most of plaintiff's recitation of the history of their relationship, although he described it simply as they "would meet up and have sex" and not see each other for up to six months in between encounters. Contrary to plaintiff, defendant testified the parties did have sexual relations in June 2017 and, about a month later, plaintiff "messaged" the girlfriend of defendant to say he had "cheated on her." On re-direct, plaintiff conceded she did contact defendant's girlfriend and said words to that effect. Sometime that August, defendant went to plaintiff's place of work to question her about contacting his girlfriend. Defendant said plaintiff told him to leave or she would call the police. Both parties agree defendant left voluntarily and has not returned to plaintiff's work.
As to the events of the early morning hours of September 20, defendant testified plaintiff texted him while he was at work at a local bar. Thereafter, he went to plaintiff's house "to have sex." In his words, they "had a conversation for a few minutes ... we were having sex for about 20 minutes ... I did hit her... it was playful ... we have had rough sex ..." for years. The defendant felt the parties had an agreement to be rough and suggested that it is not as if they have written contracts to define their limits. Defendant admitted that after his punch, "she objected to being hit" but then they "had more sex." He testified "[i]t was a closed fist and a tap on the jaw ... [he] was not intending to harm her ... there is a fine line to how rough [they] get." When asked to describe that *454"fine line," defendant testified "[t]here is definitely hitting and slapping and choking." After concluding their sexual relations, defendant testified they had a conversation about "it," referring to the punch. He told plaintiff "it was playful." Defendant promised "not to do it again." However, when he left her home that night, he felt they "had an agreement not to do that again" but would continue to otherwise have rough sex.
Defendant disputed the need for the entry of a FRO, claiming he never goes to plaintiff's home unless invited and, other than the one time in August to question plaintiff about contacting his girlfriend, defendant has only gone to plaintiff's place of employment to make "a purchase." Plaintiff admitted defendant has not come to her home uninvited.
Plaintiff was initially credible, principally because of her candor with regard to the scope of her consent with defendant. However, her credibility waned. She was inconsistent as to whether defendant actually punched her a second time. Further, plaintiff's testimony regarding a prior history of domestic violence was completely inconsistent with the allegations in her complaint. In fact, plaintiff's testimony established there was no prior history of violence.
Defendant was a credible witness. He did not minimize his actions. The court found defendant's admission of a single punch to be believable. The balance of his testimony was candid and straightforward. The defendant maintained eye contact. Defendant's description of the parties' encounter in June, as well as his visit to her *157place of employment in August, was far more credible than plaintiff's testimony.
II.
"Victim of domestic violence" is defined in the PDVA. N.J.S.A. 2C:25-19(e). Among other protected persons, a victim "includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship."
A mere quantitative analysis of the Andrews factors to the facts of this case could lead a court to conclude the parties did not have a dating relationship. To do so, however, would be to ignore the remedial purpose of the PDVA to protect victims to the greatest extent possible. Tribuzio v. Roder,
In J.S. v. J.F.,
While the J.S. court declined to endorse the Andrews test, a subsequent appellate decision has done so. In S.K. v. J.H.,
In this matter, the parties never progressed to a relationship that was recognized in public or by others. It was neither open nor "observable." Arguably, the parties had a sexual relationship which they attempted to keep secret. Certainly, defendant sought to conceal his relationship with plaintiff from his actual girlfriend. Therefore, the question is whether a private relationship *457of consensual, but sporadic, sexual encounters can be construed as a "dating relationship" under the PDVA. This court concludes it can and should be. Here, it is undisputed the parties engaged in intimate, physical and sexual relations over the course of approximately eight years. Notably, there is no authority which requires sexual relations between parties in order to constitute a "dating relationship." To so require would diminish the protections under the PDVA. While one date is clearly insufficient, S.K.,
These parties engaged in a consensual, but sporadic, sexual relationship for eight years. The defendant came to plaintiff's bedroom on invited occasions and shared intimate and highly personal encounters with her. As in J.S., to slavishly adhere to traditional notions of dating would be to ignore "the parties' own understanding of their relationship ...."
*458In a footnote, the Andrews court left open the possibility of a "secret" dating relationship. Andrews,
III.
Prior to granting an FRO pursuant to the PDVA, the judge must conduct a "two-step analysis" of a plaintiff's claim. N.T.B v. D.D.B.,
(1) [t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) [t]he existence of immediate *459danger to person or property; (3) [t]he financial circumstances of the plaintiff and defendant; [and] (4) [t]he best interests of the victim and any child. ...
[ N.J.S.A. 2C:25-29(a).]
N.J.S.A. 2C:25-29(a) permits the introduction of evidence of the "previous history of domestic violence." That history is admissible "[b]ecause a particular history can greatly affect the context of a domestic violence dispute," thus, "trial courts must weigh the entire relationship between the parties ...." Cesare v. Cesare,
Here, plaintiff alleges defendant committed the predicate acts of assault and harassment. A person commits a simple assault if he "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1(a)(1). Bodily injury means "physical pain, illness or impairment of physical condition." N.J.S.A. 2C:11-1(a). It is well-settled bodily injury can occur from a slap in the face which causes a stinging sensation, State v. Downey,
Two days after the incident, plaintiff sought treatment at a local urgent care center. She testified her jaw was bruised and painful.
*460Discharge instructions from the urgent care center were admitted without objection. Those records showed plaintiff was diagnosed with a "jaw injury." Three radiographic views of the mandible were taken and showed "[n]o acute fracture. No dislocation." Further, the radiologist concluded, the "visualized soft tissues [were] within normal limits." Plaintiff received no further treatment. The court also admitted two photographs of plaintiff's face, one taken on the day of the incident and the other two days later. While plaintiff testified she was bruised, the photographs were unremarkable for any bruising, except perhaps barely perceptible discoloration. The trial occurred ten days after the incident and the court could not observe any bruising on the plaintiff's face at that time. The defendant admits to striking the plaintiff with one, self-described "playful," "tap" to the jaw. Based upon the lack of serious injury, the court is convinced plaintiff sustained only bodily injury, not significant or serious bodily injury, as those terms are defined in N.J.S.A. 2C:11-1(b), (d), as a result of both the consented to physical contact as well as the disputed punch.
In addition, the defendant undoubtedly and admittedly engaged in conduct which amounts to offensive touching under the harassment statute, N.J.S.A. 2C:33-4(b),
But for plaintiff's admitted consent to "rough sex," the elements of simple assault and harassment by offensive touching could easily be found. Consent is an affirmative defense under New Jersey's criminal code, N.J.S.A. 2C:2-10. Specifically, consent to *461bodily harm is a defense pursuant to N.J.S.A. 2C:2-10(b), which provides:
b. Consent to bodily harm. When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
(1) The bodily harm consented to or threatened by the conduct consented to is not serious; or
(2) The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
(3) The consent establishes a justification for the conduct under chapter 3 of the code.
Defendant has the burden of establishing an affirmative defense by a preponderance of the evidence. N.J.R.E. 101(b) ; Clark v. Clark,
*161Plaintiff never clearly described the so-called second punch alleged in her complaint and the court concludes there is insufficient proof of a second punch. While plaintiff denies consenting to the punch, she concedes the parties never expressly defined the limits of their agreement to engage in "rough sex." The court can clearly understand why elevating consensual rough sex from slapping, choking and hair pulling to a punch may potentially cross the line between the parties. However, plaintiff's actions belie her claim of non-consent. Plaintiff admittedly continued to engage in voluntary sexual relations with defendant for another twenty minutes after the punch, despite claiming at trial to have been "shocked." Defendant agrees plaintiff "objected" to the punch, but nevertheless continued with consensual sexual relations.
In theory, there may be a significant difference between an open hand slap to the face and a full-force closed fist punch to the jaw. Under the facts of this case, particularly based upon the court's credibility determinations, there is little, if any, appreciable difference between a hard slap to the face and a tap to the jaw.
*462With respect to consent to bodily harm, "the consent of the victim will preclude the infliction of the harm or evil sought to be prevented by the law." Cannel, N.J. Criminal Code Annotated, cmt. 2 on N.J.S.A. 2C:2-10 (2016-2017).
However, this incident should not be analyzed in a vacuum. Rather, the court must consider the history between the parties and "weight their entire relationship" as it can greatly affect the context of a domestic violence dispute. Cesare,
Under the circumstances, especially in light of the history between the parties, the court concludes the proofs are in equipoise as to whether defendant committed a simple assault or whether plaintiff consented to bodily injury that included a punch. N.J. Div. of Youth & Family Svcs. v. N.S.,
Despite these findings, the court concedes the ruling is a close call as to whether defendant's decision to elevate the "rough sex" to a punch was appropriate. For that reason, the court proceeds to analyze whether a final restraining order *162is necessary under the two-step analysis of Silver,
Commission of one of the enumerated acts of domestic violence, without more, does not require the issuance of an FRO; the judge must conduct a "two-step analysis" of a plaintiff's claim. N.T.B,
There is a lack of history of domestic violence between these parties. The complaint contained allegations of a prior history, but plaintiff's testimony never included any prior history of violence. There is no proof of prior threats, harassment or abuse. Likewise, there is no evidence of an immediate danger to persons or property. Further, the "history" between the parties establishes a pattern and practice of agreeing to "rough sex," without objection, rather than a history of abuse. The context of their relationship militates against a finding an FRO is necessary.
The court rejects plaintiff's conclusory testimony regarding defendant's "impulsivity." It was unsupported by any facts. Plaintiff admitted she invited defendant to her home on September 18.
Based upon all of the foregoing, the court dismisses the domestic violence complaint and vacates the TRO.
Those factors are: (1) Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization? (2) How long did the alleged dating activities continue prior to the acts of domestic violence alleged? (3) What were the nature and frequency of the parties' interactions? (4) What were the parties' ongoing expectations with respect to the relationship, either individually or jointly? (5) Did the parties demonstrate an affirmation of their relationship before others by statement or conduct? (6) Are there any other reasons unique to the case that support or detract from a finding that a "dating relationship" exists? Andrews,
Neither party provided copies of any text messages, but both testified their understanding and expectation was to have "rough sex."
During her initial testimonial description of the incident, plaintiff only briefly mentioned the second punch alleged in the complaint.
The court concludes that subsections (a) and (c) of the harassment statute are not applicable to the facts of this case.
The complaint alleged defendant has a history of "verbally and emotionally abusing" plaintiff, including making fun of her weight, her family and career path, as well as calling her derogatory names. It would likely have made little difference if plaintiff testified about these allegations as "[v]ulgar name-calling alone is not domestic violence." R.G. v. R.G.,
The court does not deny plaintiff relief because she invited defendant to her home for consensual sexual relations. She is deserving of victim status if subjected to an act of domestic violence. But when considering whether a restraining order is "necessary" under the second prong of Silver, the court concludes plaintiff's invitation to defendant is relevant and probative.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.