Enacted in May 2016, the Sexual Assault Survivor Protection Act (SASPA) helps to protect victims of sexual assault from further harm. The law may appear confusing if you're unfamiliar with how it works, so here is an introduction to the law and how it may affect you.
If you're dealing with a SASPA matter, Joseph Lento and his Criminal Defense Team can help. Call 888.535.3686 for legal assistance.
What Is the Sexual Assault Survivor Protection Act?
The Sexual Assault Survivor Protection Act (SASPA) protects victims of sex crimes in New Jersey. Specifically, SASPA allows individuals to apply for a civil remedy known as a protective orderif they:
- are the victim of unwanted – or non-consensual – sexual contact; and
- can't apply for a restraining order because they're not considered victims of domestic violence.
We will break down what sexual offenses are covered by SASPA below, but in broad terms, any victim of a sex crime in NJ who isn't considered a domestic violence victim may be entitled to seek a civil protective order under SASPA.
Why Was SASPA Introduced?
Before SASPA, only victims of domestic violence could apply for restraining orders to protect them from further harm, such as sexual harm or violence. To be considered a domestic violence victim, individuals must prove that they have a certain type of relationship with the defendant. The definition of who qualifies as a domestic violence victim can be found in New Jersey's Prevention of Domestic Violence Act 1991 at 2C:25-19 and includes:
- certain household members
- current and former spouses
- romantic partners
You normally need to be aged 18 (or emancipated) to apply for an order under the 1991 Act, but if the alleged perpetrator and the victim have a child in common, then children are also protected.
How SASPA Changed the Process
Since many sex crime victims do not qualify as domestic violence victims, they can now seek a protective order no matter what their relationship is to the accused. SASPA makes it easier for survivors to seek civil protections.
And before SASPA, sexual assault victims had to file criminal charges if they didn't qualify as domestic abuse victims. However, there's now no need to make a criminal case, so a person may be subject to a protective order under SASPA without ever facing criminal charges.
What Is a Sexual Assault Protective Order?
A sexual assault protective order is a legally enforceable order of the court. It protects victims of sexual crimes from further harm by prohibiting the defendant from approaching them or contacting them. The court determines the extent of the order, but it could prevent an individual from performing actions such as:
- calling, emailing or texting the alleged victim
- sending the alleged victim messages on social media
- touching or engaging in physical contact with the alleged victim
- visiting the alleged victim at their school, college, or place of work
It may also be possible to prevent the alleged perpetrator from contacting or approaching the alleged victim's family, depending on the facts of the case.
Temporary and Final Protective Orders
Under SASPA, there are two types of sexual assault protective orders: temporary orders and final orders.
Temporary Protective Order
When a sexual assault victim first applies to the court for protection, they're usually awarded a temporary order if the judge agrees it's necessary to keep them safe.
- Temporary orders are awarded ex parte, meaning the victim makes their case, and the judge reaches a verdict without hearing from both parties.
- A temporary protective order gives the victim protection until a final, formal hearing can take place between both parties – normally in around ten days' time.
Final Protective Order
If, after a formal hearing, the judge agrees that a protection order is necessary to keep a person safe from the respondent, they will award a final protective order.
- Final sexual assault protective orders are permanent and take effect immediately.
- Once a final protective order is granted, it can't be removed without appealing to the court.
Police officers have the power to enforce sexual assault protective orders across NJ (2C:14-17). This could mean arresting the alleged perpetrator and taking them into custody.
Why Victims May Wish to Seek Protective Orders
There are two main reasons why an individual may seek a protective order for sex crimes in NJ.
- If there's no qualifying domestic relationship between the defendant and the alleged victim, then filing for a protective order under SASPA may be the person's only remedy against the defendant unless they're prepared to press criminal charges.
- The burden of proof is lower in civil cases than in criminal cases. Judges may be more likely to err on the side of caution and award protective orders to keep individuals safe from possible harm.
Sexual crimes are a serious problem, and victims have the right to feel safe from further harm. Protective orders give these individuals the legal protections they need to move forward.
There's always the chance that a sexual crime allegation is false or exaggerated. Those accused of sex crimes have the right to defend themselves effectively – it's crucial to hire an attorney immediately if you're facing sex crime allegations.
Are Sexual Assault Protective Orders Criminal or Civil?
Sexual assault protective orders are civil court orders. They're dealt with by NJ family courts rather than the criminal courts.
- A person can seek a sexual assault protective order even if they never file criminal charges.
- Even if criminal charges are filed, SASPA makes it clear that criminal and civil cases are separate (2C:14-14(c)). If the civil courts award the protective order, this does not automatically mean that criminal charges will be successful.
If someone violates a sexual assault protective order, then they may be arrested, and they could face criminal charges. The consequences can be serious – contact Joseph Lento and his Criminal Defense Team if you're arrested for allegedly violating a protective order.
Who Can Apply for a Protective Order Under SASPA?
Under SASPA 2C:14-14(a), victims can apply for a protective order if they're not a domestic violence victim, but they're the victim of actual or attempted lewdness or unwanted sexual contact. The offending actions can be defined as follows.
- Sexual contact: Intentionally touching the victim's intimate body parts (including the sexual organs, buttocks, and breasts), either through clothing or directly, with the intent to arouse the perpetrator or degrade the victim.
- Sexual penetration: Any vaginal, anal, or oral sex or penetration by using an object or a body part e.g., a finger.
- Lewdness: Exposing the genitals to arouse either the perpetrator or another individual.
So, for example, SASPA allows individuals to get protective orders against neighbors, coworkers, classmates, and others they share no romantic history with.
- If the victim is in a romantic or sexual relationship with the alleged perpetrator – or they had such a relationship in the past – they should use the domestic violence process instead.
- If the accused person is under 18, a protective order should be sought as per the New Jersey Code of Juvenile Justice (2C:14-14(b)(1)).
It's important to note that, under SASPA, a parent or guardian can make an application on a minor's behalf or on behalf of an adult child who lacks the developmental capacity to provide consent.
How to Apply for a Sexual Assault Protective Order
First, the alleged victim files a petition for a temporary protective order (as described in 2C:14-15) with their local family courthouse. This stage involves completing paperwork and giving the judge enough information to decide the case. A judge will grant the order if they believe the individual is a victim of lewdness, non-consensual sexual contact, or sexual penetration.
Within ten days of the victim's application, there should be a hearing within the Superior Court to determine if a final protective order is necessary to protect the alleged victim from the respondent (2C:14-16).
If you're dealing with sexual assault protective order matters, contact Joseph Lento and his Criminal Defense Team to see how we can help.
The Final Protective Order Hearing
The hearing is the respondent's chance to demonstrate why the allegations are false, malicious, or exaggerated and that they pose no threat to the alleged victim. According to 2C:14-16(a), the court will consider:
- Whether one or more acts of lewdness, unwanted penetration, or unwanted sexual contact (or attempts at such activities) took place; and
- The likelihood of the respondent causing the victim further harm.
The standard of proof is the civil standard of “the preponderance of the evidence.” The victim must show, based on the evidence, that it's more likely than not that the incident(s) took place as described.
SASPA makes it clear that the judge will not consider factors such as the victim's alleged demeanor or manner of dress, their level of intoxication at the time of the incident, or whether the victim reported the incident to law enforcement. The only questions the court must answer are whether the incident occurred and whether the respondent is still a threat.
Consequences of a Protective Order Under SASPA
If the judge awards a final protective order, it will prevent the respondent from contacting the victim and stop them from attempting to commit further acts of non-consensual penetration, sexual contact, or lewdness against the victim. Under 2C:14-16(f), the order can also stop the respondent from:
- Entering the victim's home, place of work, or place of study
- Stalking or following the victim
- Harassing the victim (including online harassment)
- Contacting others in the victim's life, such as family members, coworkers, and anyone providing sexual assault support services to the victim
Violating SASPS Protective Orders
The consequences of a civil protective order can be far-reaching. However, violating a protective order can have serious criminal consequences.
- It's an act of criminal contempt to violate the provisions of a protective order (2C:14-18).
- Officers can arrest someone accused of violating a protective order, and they will either be granted bail or held until a detention hearing can be set (2C:14-17).
Criminal contempt charges can result in fines of up to $1,000 (fines are higher for repeat offenders) and even jail time. If you're not sure how to comply with a protective order, ask Joseph Lento and his Criminal Defense Team for help.
When the Court Refuses to Grant a Protective Order
Courts often award temporary orders as, on balance, they may protect the alleged victim until the defendant has a chance to make their case. However, courts will only award a final order if they believe that a sex crime took place and the victim is at risk of further harm.
If the court refuses to grant a final protective order, the alleged victim can appeal this decision. There is no guarantee, however, that an appeal will be successful.
How Long Do Sexual Assault Protective Orders Last?
A temporary sexual assault protective order usually only lasts a few days or so until the final hearing takes place.
A final sexual assault protective order lasts indefinitely. It does not expire, and it's enforceable across the US. However, either party – the victim or the defendant – can apply to have the order changed or dissolved (2C:14-16(i)).
Challenging Sexual Assault Protective Orders
There are many reasons why you might challenge a protective order. For example, if the accusations are fabricated, exaggerated, or false, you deserve the right to defend yourself. And although civil protective orders don't typically show up on background checks, they can still have long-term consequences – and accidentally violating the order can result in criminal charges.
Joseph Lento and his Criminal Defense Team will evaluate your case and determine how best to defend the charges. The Team will ensure you understand your options and will do everything possible to mitigate the consequences of a protective order on your life.