Under NJ's Victim's Assistance and Survivor Protection Act (VASPA), it's possible for sexual assault victims to seek protection against their alleged abuser. The mechanism for obtaining this protection is a specific type of restraining order known as a sexual assault protective order.
Sexual assault protective orders can, when used appropriately, provide much-needed safety and reassurance to victims of sexual violence. However, they can also significantly impact a defendant's professional and personal life in the long term, even if the accusations are untrue or exaggerated. But rest assured that if you're served with a protective order, the Lento Law Firm Team can assist. We've helped numerous individuals successfully amend existing orders and challenge unfair rulings.
To discover how we can assist, call the Lento Law Firm at 888.535.3686 or complete our online contact form.
What Is a Protective Order?
Protective orders, or restraining orders, are court orders that protect individuals from abuse, assault, or harm. They stop alleged abusers from behaving in certain ways, such as calling or texting the victim, making physical contact, or being within a certain vicinity of them, e.g., visiting their home or workplace.
There are various types of protective orders in NJ – which order to seek depends on what outcomes the alleged victim is trying to achieve and their relationship to the alleged abuser.
All NJ protective orders can be classified as “temporary” or “final” orders. There are significant differences in how these orders work.
Temporary Orders
Temporary protective orders are issued immediately by the court after the victim (“petitioner”) makes an initial application. Once the court issues a temporary order, it schedules a hearing date – usually in 10 days' time. The order protects the victim during this interim period.
These orders can't be appealed because they are temporary. However, they may be issued without much consideration of the facts or the evidence in a bid to err on the side of caution. For defendants who stand falsely accused, this is a significant concern.
Final Orders
Final protective orders can only be issued after a full court hearing involving both parties before a judge. They're issued if, on the “preponderance of the evidence,” the petitioner is a victim of harm or abuse, and they're at continued risk unless the court passes an order restricting the defendant's conduct.
What Is a Sexual Assault Protective Order?
A sexual assault protective order protects victims of sexual assault, unwanted sexual contact, or abuse from their abuser. There's no need for the victim to file criminal charges – they can seek a protective order without involving the criminal courts.
Sexual assault protective orders are available for those allegedly assaulted by strangers or by someone with whom there's no pre-existing sexual, romantic, or domestic relationship. This order is relatively new – prior to VASPA, only those in qualifying domestic relationships could seek protective orders. Anyone allegedly assaulted by a stranger had no choice but to file criminal charges. VASPA, however, makes it easier for victims to secure protection without the need to involve prosecutors.
How Does a Sexual Assault Protective Order Protect Victims?
Sexual assault protective orders purport to safeguard victims of abuse by preventing the alleged perpetrator from behaving in certain ways. Here are some examples of common behaviors prohibited by protective orders.
- Contacting the alleged victim online or via text message.
- Entering the alleged victim's place of work or being within a certain physical proximity to them.
- Harassing or stalking the alleged victim (and, in some cases, their loved ones, friends, or family).
- Making physical contact with the alleged victim or performing any acts of sexual violence.
Given how far-reaching these consequences are, the impact on a defendant's life can clearly be severe.
What Are the Criminal Penalties for a Sexual Assault Protective Order in NJ?
Although these protective orders are technically civil orders, criminal penalties often follow.
In NJ, a defendant could face first, second, or third-degree sexual assault charge alongside the civil order. If convicted, defendants face up to 20 years in prison, and fines of up to $200,000, for the most serious crimes e.g., if there's force or weapons used.
You need our attorneys now if you're facing criminal charges for sexual assault. Contact us immediately for legal advice.
Who Can Seek a Sexual Assault Protective Order in NJ?
Anyone who alleges they are the victim of sexual assault as defined in VASPA can seek a temporary protective order under the Act. A person qualifies to apply for a protective order under VASPA if they are the victim of actual or attempted “nonconsensual sexual contact, sexual penetration, or lewdness.” Under the Act, we can define these terms as follows:
- Lewdness, e.g., someone exposing themselves to the victim
- Unwanted sexual contact through clothing or under clothing
- Actual sexual penetration
Victims of harassment and cyberstalking also qualify to seek a protective order. Stalking in this context is purposefully and knowingly behaving in a way that causes the victim alarm, distress, or fear for their safety. There must be a pattern of behavior, i.e., it happens more than twice, and it must be enough to cause a reasonable person to fear or be distressed in the circumstances.
What Is the Process for Obtaining NJ Sexual Assault Protective Orders?
First, the alleged victim must apply for a temporary protective order. They must explain why the order is necessary to protect their safety. Courts usually award temporary orders readily because the emphasis is on protecting the victim – even if there's not much evidence presented in their favor at this stage. The alleged perpetrator has no opportunity to present evidence or defend themselves at this stage. Most defendants have no knowledge that protective order proceedings are underway until they're served with the order.
Next, then, the temporary order is served on the alleged perpetrator. They must immediately comply with the order even if this means, for example, leaving work immediately if they're coworkers or otherwise leaving the vicinity. To avoid accidentally violating the protective order, defendants should contact the Lento Law Firm Criminal Defense Team for urgent assistance and guidance.
The court will schedule a hearing date. This is the defendant's first opportunity to explain why the order is unnecessary and that the alleged victim is at no risk of harm. It's vital to have an attorney on your side at this point to ensure that evidence is presented in the most compelling, robust, and persuasive way.
The judge decides whether a final order is necessary based on the “preponderance of the evidence.” This means that, based on the evidence, it's more likely than not that the incident(s) occurred as described. It's a relatively low bar of proof to meet – certainly lower than the criminal standard of “beyond a reasonable doubt.”
If the alleged victim fails to make their case, the judge dismisses the case and won't enter a final protective order judgment. However, if the defendant fails to appear, or if the judge believes that the victim's case is compelling, they will enter a final protective order judgment. As with temporary orders, final orders are immediately enforceable.
What Are the Consequences if a Judge Grants a Sexual Assault Protective Order?
There are various legal, financial, and personal consequences when a judge grants a sexual assault protective order – even if it's only on a temporary basis. Here are just some examples of how an order could affect whole families.
- Protective orders, in general, may impede a defendant's ability to attend significant events, including weddings, birthdays, graduations, and funerals.
- The defendant may no longer be able to work at the same job or on the same shift patterns as the petitioner.
- Any legal order could irrevocably impact the defendant's relationship with other friends, neighbors, and work colleagues.
As noted, there may also be criminal consequences for the defendant if they face sexual assault charges. And if they're imprisoned, then under NJ's No Early Release Act (NERA), they must serve a minimum of 85% of their sentence before they're eligible for parole.
Defendants also face possible criminal charges should they violate the restraining order, even accidentally.
How Long Do Protective Orders Last?
It depends on the type of order under consideration.
Temporary sexual assault protective orders last around 10 days. They remain in place to protect the victim during the period between filing for an order and the final hearing taking place.
- If the judge believes it necessary, they'll award a final order, which will then replace the temporary order.
- If the judge finds in the defendant's favor, the temporary order expires.
Final sexual assault protective orders are meant to last indefinitely. There's no expiration on these court orders, meaning they could have a permanent impact on the defendant. They may, however, be modified or lifted if the defendant (or, in some cases, the petitioner) can show that they're no longer required.
What Are the Consequences of Violating a Sexual Assault Protective Order?
Protective order violations are considered criminal contempt, which is a crime in the fourth degree. Anyone who allegedly violates a protective order must be arrested, and they could face criminal penalties. The potential penalties for criminal contempt in NJ are:
- Up to $1,000 in fines for a first violation
- Up to 180 days in jail for a first violation
- A mandatory 30 days in jail for a repeat offense
Even if the defendant did not violate the order, they'll still face the stress and trauma of being arrested. And unless the charges are dismissed quickly, they'll be required to defend the charges. Anyone facing contempt charges should contact the Lento Law Firm Criminal Defense Team for urgent assistance.
Can a Defendant Appeal a Sexual Assault Protective Order?
Yes. However, time is limited, and the defendant must have grounds for an appeal before they can act.
In NJ, defendants normally only have 45 days to appeal a final sexual assault protective order. The right to appeal is lost if it's out of time. Before filing for an appeal, defendants are required to show that the judge erred in some way when they granted the order. This could mean, for example, misapplying the law, disregarding relevant evidence, or misunderstanding the facts. It's also possible to appeal if the judge does not fully set out their reasons for granting the final order in the petitioner's favor.
Appeals are challenging and procedurally complex. It's best for defendants to succeed in the first instance by having the petitioner's request for a protective order denied. Contact the Lento Law Firm Team to learn more about sexual assault protective order appeals and how to present the most effective case.
Can a Sexual Assault Protective Order Be Modified?
Yes. Either party can file a motion for reconsideration with the court to have the order modified. However, a judge will not modify or revoke a sexual assault protective order unless they're convinced that it's no longer necessary to protect the victim. This means providing evidence to show that circumstances have changed and the order is not proportionate or required.
Even if both parties reconcile, they must approach the court to have the protective order dismissed or modified before they can resume their relationship. Otherwise, the defendant may still face criminal contempt charges as the order remains in force unless and until the courts direct otherwise.
Retain the Lento Law Firm Team
If you're facing sexual assault allegations, no matter how minor – or serious – you need advice from an experienced attorney. That's where the Lento Law Firm Team can help. Our lawyers have a comprehensive understanding of the protective order process. We will rigorously uphold your legal rights and protect your interests. And we will stand alongside you every step of the way.
You should not attempt to handle sexual assault allegations alone. There's too much at stake to leave anything to chance when it comes to your future. Call the Lento Law Firm for the representation you deserve at 888.535.3686, or complete our contact form to schedule a consultation.
