This appeal raises important questions under the New Jersey Prevention of Domestic Violence Act (PDVA) when the predicate act of domestic violence involves egregious physical force—in this instance, an acquaintance rape involving manual strangulation. While the court acknowledges the deference generally shown to Family Part judges in domestic violence cases, given the disturbing facts proved at trial and found by the trial judge, the court reverses the denial of plaintiff's request for a final restraining order (FRO) and remands for entry of an FRO.
In reaching that conclusion, the court addresses the tension that can arise between two important principles that inform the decision on whether to issue an FRO under the PDVA: first, that the trial judge must consider whether the predicate act was part of a pattern of historical domestic violence involving the parties; and second, that the need for an FRO is often "perfunctory and self-evident" when the predicate act involves physical violence, especially when the unlawful force is severe. In this instance, the court accords greater significance to the egregiousness of the physical force inflicted upon the victim than to the fact that there was no history of past acts of domestic violence between the parties. The forcible date rape, in other words, was a sufficiently egregious action to warrant an FRO notwithstanding that it was the first and only act of domestic violence defendant perpetrated against the victim.
The court further explains that when applying the perfunctory-and-self-evident principle to the facts of specific cases, the severity of the predicate act is an important consideration, since the more egregious the unlawful conduct, the greater the need for protection from further abuse. Aside from the egregiousness inherent in nonconsensual sexual penetration, the court emphasizes that the assaultive conduct in this case involved strangulation, signaling the kind of coercive control that the PDVA is designed to forestall, even when it does not rise to the level of attempted murder or render the victim unconscious. The court holds that while there are no automatic FROs under the PDVA framework, strangulation by itself can be a sufficiently egregious action so as to invoke the perfunctory-and-self-evident principle.
Aside from addressing the legal impact of the egregiousness of the physical force that was inflicted upon the victim, the court also considers the "immediacy" of future harm that must be shown to warrant an FRO. Although a plaintiff seeking an FRO under the PDVA bears the burden of establishing the need for protection from further abuse, the foreseeable abuse need not be imminent and the risk of it coming to fruition should be assessed in the context of the victim's best interests. The court explains that in cases like this one, where future contact between the parties is foreseeable, a victim of extreme physical violence has a right to be assured that the assailant's conduct during any future encounter will be constrained by the terms of an enforceable judicial order—one that can be presented to police if needed.
The court thus concludes that once the trial judge made his credibility findings, credited plaintiff's testimony, found that defendant committed forcible acquaintance rape and strangled the victim, and acknowledged the parties might run into each other at the college they will both soon attend, the decision whether to issue an FRO became perfunctory and the need for the protection of an FRO self-evident.