DCP&P Investigations – What is an Unfounded Allegation?

The rise of social media, smartphones, and other digital advances has led to the concept of digital abuse. Most people have experienced unwanted digital contact, whether spam emails or rude comments on social media. Digital abuse is something more, particularly if it occurs between family members or couples. Digital abuse may rise to the level of digital domestic violence under New Jersey law, and those who use social media frequently are at high risk of digital abuse allegations. Domestic violence is a crime that is punished severely in New Jersey, which has some of the toughest laws in the nation. As cyber-harassment and electronic stalking fall under the umbrella definition of domestic violence, it is possible that a small amount of poor judgment can result in devastating consequences.

If you find yourself facing allegations of digital abuse, you can trust the Lento Law Firm with your defense. With our experience in defending individuals accused of domestic violence, including the evolving area of digital abuse, we are well-equipped to handle your case. Call the Lento Law Firm Criminal Defense Team at 888-535-3686 or leave your details online, and we will contact you.

What Is Digital Abuse or Domestic Violence?

When one partner in a current or former relationship uses digital technology to hurt or abuse the other, the law may define the behavior as digital abuse or digital domestic violence. Digital abuse can take many forms, including:

• Social media abuse or posting offensive content on the other person's social media accounts.
• Harassing the other person online or sending threatening texts.
• Stalking the other person electronically.
• Revenge porn, or publicly posting pictures intended to remain between two people.
• Covertly using technology to monitor another person's actions, such as putting a tracker on their car or mobile phone.
• Using digital technology to spy on another person, including the use of a hidden camera.

If both parties in a relationship are adults and agree to the use of digital technology, it is not digital abuse. Many people send sexually explicit texts or photographs to a dating or romantic partner. But if a former partner or date uses digital technology with intent to harm the other person, it may rise to the level of digital domestic violence.

Digital Domestic Abuse is Common

A recent study found that digital abuse is common in romantic relationships, and 12% of people who have been in a romantic relationship report some digital domestic abuse. Most frequently, this abuse takes the form of spying or monitoring the other partner. Younger people are more likely to report digital abuse than older people. Interestingly enough, women and men reported digital abuse at the same rate, which goes against the stereotypical image of a victim as female.

Domestic Violence Laws in New Jersey

Under New Jersey law, domestic violence is not a separate crime but a type of "upgrade" to other charges. These charges include:

• Assault.
• Stalking.
• Harassment.
• Cyber-harassment.

To constitute domestic violence in New Jersey, the parties must have been in a family, intimate, or dating relationship. The parties are typically spouses, former spouses, co-parents of a child, people who are or have been dating, household members, or other family members.

Stalking in New Jersey

Stalking is a crime covered by domestic violence laws in New Jersey. NJ Stat. § 2C:12-10 defines stalking as repeated instances of:

• Following another person.
• Making unwanted contact with another person.
• Conveying threats, including threatening texts, emails, online activity, or telephone calls or messages.

In the digital world, stalking might involve flooding a person's email or phone with hundreds of texts or emails. It might involve repeatedly making unwanted contact on social media, including using false identities or third parties to get around "blocks." Stalking might also mean using a device to track the movements of a dating partner after a breakup. The key distinction between pursuing a romantic partner and stalking is that stalking is repeated behavior that continues after the other party has indicated a lack of interest.

Harassment and Cyber-harassment

New Jersey law defines harassment as the following behavior done with the intent or purpose of harassing another person:

• Calling or communicating at an inconvenient hour or with "offensively coarse language" in a way likely to cause annoyance or alarm.
• Striking, kicking, shoving, or threats to physically harm another person.
• Alarming conduct or repeated acts intended to alarm or annoy another person.

The standard of "offensively coarse language" is quite subjective. The language that might shock one person is everyday conversation for another. For this reason, people engaging in relatively low-level misconduct may find themselves facing charges of domestic violence.

New Jersey law defines "cyber-harassment" as harassment made through any online means, including texts, emails, telephone calls, and online. This might include:

• Threatening to harm another person on social media or through texts or phone messages.
• Sending offensive material to a person intending to harm or put the other person in fear.
• Texting a person hundreds or even thousands of times, or emailing or direct messaging them.

Both harassment and cyber-harassment involve an intent to harm the other person or to put them in fear. Harassment is not inadvertent.

Stalking vs. Cyber-Harassment

Stalking and cyber-harassment are similar crimes, but there are differences. Stalking involves repetitive conduct, which the victim finds distressing. Cyber-harassment involves as little as one communication if that communication intentionally puts the recipient in danger or fear.

Neither stalking nor cyber-harassment requires that the alleged defendant and victim have a relationship. However, for the crime to be covered by domestic violence laws and protections, the parties must have some type of relationship. But that relationship can be minimal.

Dating and Casual Acquaintances and Domestic Violence Laws

A person in a current or past "dating relationship" may accuse the other party of domestic violence under NJ law. However, the exact meaning of "dating relationship" can get murky, particularly in this electronic age. A New Jersey appellate court has found that a "dating relationship" may exist, although the couple never had an actual in-person date. CC v. JAH, 232 A.3d 505 (NJ Appellate Div. 2020).

Because the nature of the parties' relationship is critical to jurisdiction under the Prevention of Domestic Violence Act, New Jersey courts have adopted the following factors to determine whether a particular relationship is covered:

1. Whether there was a social or interpersonal bonding of the parties beyond mere casual friendliness.
2. The length of the relationship before domestic violence allegations.
3. The nature and frequency of the parties' interactions.
4. The expectations of the parties, either individually or jointly.
5. Whether the parties affirmed their relationship by statement or conduct.
6. Any other factors that support or undercut the existence of a "dating relationship" between the parties.

SK vs. JH, 426 N.J. Super. 230, 234 (2012).

Remember that a person can still be found guilty of cyber-harassment or stalking if none of these factors exist. Many people charged with cyber-harassment have never met the alleged victim and have no preexisting relationship with them. But in that case, it would not involve domestic violence. If the parties had an online relationship that one party sought to end, the other party might be charged with domestic violence cyber-stalking if they continued to force the relationship. Sometimes, however, the other party gets mixed messages and fails to understand or otherwise lacks the intent to engage in cyberstalking.

Penalties for Domestic Abuse: Harassment and Cyberstalking

In NJ, most domestic violence cases are heard at the county (municipal) level. Each of the 21 counties in NJ has a prosecutor's office, which will decide how to pursue a domestic violence case. A cyber-harassment case may be charged as a disorderly person's offense (i.e., misdemeanor), while more serious crimes may result in indictable offenses (felonies). A disorderly person's offense may result in up to 6 months in jail, significant fines, and other court-ordered interventions. However, the consequences of a charge or conviction for digital domestic violence go far beyond criminal penalties.

Consequences of Digital Domestic Violence Charges

People charged with any form of domestic violence will face potentially devastating long-term consequences, including:

• A restraining (protective) order. The person accusing you of digital domestic abuse may seek a restraining order against you. This restraining order may force you to move your residence, prevent you from contacting family members, or even impact your ability to see your children.
• Loss of custody rights. A restraining (protective) order can cause you to lose custody rights or limit your ability to parent your child or children.
• Loss of the right to a firearm. If you are convicted of a domestic violence crime or have a restraining order against you, you may need to surrender your firearms.
• Denial or loss of professional license. A domestic violence conviction can lead to the loss of a professional license.
• Loss of employment or volunteer opportunities. A domestic violence conviction may result in the loss of employment opportunities or the ability to volunteer at your child's school.

While the consequences of a domestic violence charge and restraining order are serious and life-altering, remember that a protective order is available to alleged victims even if the alleged stalking or cyber-harassment allegations do not meet the legal definition of domestic violence.

Victim's Assistance and Survivor Protection Act (VASPA)

The New Jersey Legislature passed the Victim's Assistance and Survivor Protection Act (VASPA) in 2023 to clarify and expand the availability of civil protective orders. Before 2023, people alleging cyber-harassment and stalking without familial or dating relationships could not get protective orders. VASPA provides that people alleging stalking and cyber-harassment who are not covered by the domestic relations statutes may still seek civil protective orders against the alleged offender.

What Is a VASPA Protection Order?

A VASPA order can provide the alleged victim of several types of crime the ability to get a protective order prohibiting contact. These crimes include:

• Nonconsensual sexual contact.
• Lewdness.
• Stalking.
• Cyber-harassment.

VASPA covers behavior that is relatively low-level and minor up to allegations of sexual assault. Therefore, a VASPA order carries a certain amount of stigma against a defendant. Anyone who is served with a temporary VASPA protective order should contact legal counsel immediately.

The VASPA order will order a defendant not to contact the alleged victim, go to places frequented by the victim, or contact the victim through a third party. A defendant who violates a VASPA order is liable for arrest and jail time, fines, probation, and other civil and criminal penalties. For this reason, defending your reputation and freedom is vital before such an order is entered. VASPA orders can severely limit the actions of a defendant and have long-term consequences and ramifications.

Procedures for a Protective Order

Whether an alleged victim attempts to get a restraining order under domestic violence laws or VASPA, they can apply for a Temporary Protective Order (TPO) at the Family Division of Superior Court, where either the victim or defendant resides. The judge will typically grant a TPO that is legally adequate and will schedule a hearing within 10 days to decide whether a Final Protective Order (FPO) is appropriate. At this hearing, the parties will have a chance to argue their positions before the judge, and the judge will decide whether to grant the FPO. The FPO is indefinite, meaning no expiration date or time limit exists. An FPO could theoretically remain in place forever, so it is vital to ensure it is the right remedy for the particular situation.

Domestic Violence Central Registry (DVCR)

If the judge grants an FPO, that order will be included in the New Jersey Domestic Violence Central Registry (DVCR). The registry is not public, but the information is available to law enforcement, public agencies, and the courts.

How Lento Law Firm Can Help

As you can see, the consequences of any type of domestic violence charge are serious in NJ. Don't make the mistake of viewing digital domestic abuse allegations as minor. Charges for stalking or cyber-harassment can derail your life. The Lento Law Firm Criminal Defense Team is experienced in the defense of all types of domestic violence charges, including allegations of digital abuse. Call the Lento Law Firm at 888-535-3686 or leave your details online, and we will contact you.