C.R. v. M. T.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office

of the Clerk for the convenience of the reader. It has been neither reviewed nor

approved by the Court and may not summarize all portions of the opinion.

C.R. v. M.T. (A-47-22) (087887)

Argued October 24, 2023 -- Decided April 22, 2024

WAINER APTER, J., writing for the Court.

In this appeal, the Court considers the showing required to establish “the

possibility of future risk to the safety or well-being of the alleged victim” pursuant

to N.J.S.A. 2C:14-16(a)(2) in order to obtain a final protective order under the

Sexual Assault Survivor Protection Act of 2015 (SASPA).

Plaintiff “Clara” testified that, in June 2018, she was sexually assaulted by

defendant “Martin.” Clara applied for a temporary protective order (TPO), and then

a final protective order (FPO), under SASPA. After hearing testimony, the trial

court made explicit findings under N.J.S.A. 2C:14-16(a)(1) and (2). The court found

that (1) Clara had been “subjected to nonconsensual sexual contact within the

meaning of SASPA” because her “extreme voluntary intoxication” made it

impossible for her to consent to sexual contact; and (2) there was a possibility of

future risk to Clara’s safety or well-being because Martin had been subjected to

legal fees defending against the SASPA FPO and “may now harbor a grudge against

[Clara] which would probably not have occurred but for these proceedings.” The

court therefore issued an FPO directing Martin to have no contact with Clara.

The Appellate Division reversed on the basis of the test the trial court had

used to assess consent under N.J.S.A. 2C:14-16(a)(1). 461 N.J. Super. 341, 350-51

(App. Div. 2019). The Court reversed, holding that “the affirmative consent

standard . . . is the correct standard to be applied in determining whether sexual

activity” was consensual under SASPA. 248 N.J. 428, 431, 445 (2021). The Court

noted that the trial court on remand could expand upon its abbreviated discussion of

N.J.S.A. 2C:14-16(a)(2). Id. at 448.

On remand, Clara testified that she continued, more than three years later, to

be intensely traumatized by the sexual assault. Martin did not testify, electing to

rely on his testimony from the initial hearing. The court found Clara’s testimony

from the first and second hearings “credible and believable” and Martin’s testimony

from the first hearing “not credible” and “not truthful.” On the first factor, N.J.S.A.

2C:14-16(a)(1), the court therefore held that consent to sexual contact “was not

1

affirmatively and freely given.” Turning to N.J.S.A. 2C:14-16(a)(2), the court noted

that “the statute only requires a possibility, as opposed to a probability.” The court

found “a significant risk to [Clara’s] psychological well-being should this order not

remain in effect” and ordered the FPO previously issued to remain in effect.

The Appellate Division affirmed, concluding that “plaintiff satisfied her

burden of demonstrating a predicate act as defined under” N.J.S.A. 2C:14-16(a)(1)

and that “there exists a possibility of future risk to her safety or well-being as

required by” the ordinary terms of -16(a)(2). The Court granted certification limited

to the interpretation of N.J.S.A. 2C:14-16(a)(2). 254 N.J. 183 (2023).

HELD: The plain language of N.J.S.A. 2C:14-16(a)(2) creates a standard that is

permissive and easily satisfied. Here, plaintiff testified that a sexual assault

“destroyed” her, she was intensely traumatized, and she was “terrified” for her

safety. The family court found her testimony credible. Based on that testimony, the

court held plaintiff had demonstrated a “possibility of future risk” to her “safety or

well-being.” The Court affirms.

1. “Any person alleging to be a victim of nonconsensual sexual contact, sexual

penetration, or lewdness, or any attempt at such conduct,” who is not eligible for a

restraining order as a “victim of domestic violence” under the Prevention of

Domestic Violence Act of 1991 (PDVA) may apply for a protective order under

SASPA. N.J.S.A. 2C:14-14(a)(1), -16. The standard for granting a SASPA

protective order differs depending on whether the applicant seeks a temporary or

final order. Importantly, an FPO does not require a showing that it is “necessary to

protect the safety and well-being” of the victim like a TPO does, see N.J.S.A. 2C:14-

15(a); rather, an FPO requires only the “possibility of future risk to the safety or

well-being of the alleged victim,” N.J.S.A. 2C:14-16(a)(2). (pp. 14-18)

2. The permissive standards for a SASPA TPO and a PDVA temporary restraining

order (TRO) are nearly identical, as are the procedures for seeking a PDVA final

restraining order (FRO) and a SASPA FPO. Notably, both SASPA FPOs and PDVA

FROs require consideration of a list of non-exhaustive factors, but SASPA lists only

two such factors -- “(1) the occurrence of one or more acts of nonconsensual sexual

contact, sexual penetration, or lewdness . . . ; and (2) the possibility of future risk to

the safety or well-being of the alleged victim,” N.J.S.A. 2C:14-16(a) -- whereas the

PDVA lists six, see N.J.S.A. 2C:25-29(a). The Legislature could have duplicated

the second factor for a PDVA FRO -- “[t]he existence of immediate danger to person

or property,” N.J.S.A. 2C:25-29(a)(2) -- in SASPA, but it did not. In addition, the

consequences to a defendant of a PDVA FRO are drastically different from the

consequences to a respondent of a SASPA FPO. (pp. 18-22)

2

3. Applying ordinary definitions of the terms used in N.J.S.A. 2C:14-16(a)(2), the

statute’s plain language requires a court to consider whether there is a chance that a

survivor may be exposed to physical danger, risk, or injury, or may be exposed to

something emotionally unwelcome or unpleasant that could make the survivor feel

uncomfortable, unhealthy, or unhappy. Because the language of factor two is

centered on the safety or well-being of the victim-survivor, a survivor’s own

testimony regarding possible future risks to their safety or emotional well-being can

suffice. The Court’s reading of the plain text of factor two as creating a lenient and

easy-to-satisfy standard is reinforced by context: the “possibility of future risk”

required for a SASPA FPO is less demanding than the “necessary” protection

required for a SASPA TPO or the “immediate danger” required for a PDVA FRO.

Applying that standard, the Court defers to the trial court’s factual findings because

they are supported by substantial evidence and finds no error in the court’s legal

conclusion. (pp. 22-26)

4. The Court explains why it is not persuaded by Martin’s claims of error, why it

disagrees with the concurrence’s view of N.J.S.A. 2C:14-16(e) and (f), and why it

declines to adopt either the six PDVA factors or the standard established for PDVA

FROs for use in the SASPA context. Finally, the Court explains that its discussion

of Clara’s testimony is not intended to imply that such evidence of psychological

symptoms or treatment is necessary to satisfy N.J.S.A. 2C:14-16(a)(2). (pp. 26-33)

AFFIRMED.

JUSTICE FASCIALE, concurring, disagrees that a SASPA FPO requires

victims to speculate about the “possibility of future risk to [their] safety or well-

being.” In Justice Fasciale’s view, once a victim proves by a preponderance of the

evidence that a respondent committed a predicate act of “nonconsensual sexual

contact, sexual penetration, or lewdness, or any attempt at such conduct,” N.J.S.A.

2C:14-16(a)(1), the victim is automatically entitled to an FPO prohibiting the

respondent from contacting the victim and committing further predicate acts, see

N.J.S.A. 2C:14-16(e). Justice Fasciale regards the “possibility” of what may or may

not happen in the future, see N.J.S.A. 2C:14-16(a)(2), as a factor to consider when

fashioning additional relief in the FPO under N.J.S.A. 2C:14-16(f) rather than an

element of proof that a victim must establish to obtain an FPO.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON,

PIERRE-LOUIS, and NORIEGA join in JUSTICE WAINER APTER’s opinion.

JUSTICE FASCIALE filed a concurrence.

3

SUPREME COURT OF NEW JERSEY

A-47 September Term 2022

087887

C.R.,

Plaintiff-Respondent,

v.

M.T.,

Defendant-Appellant.

On certification to the Superior Court,

Appellate Division.

Argued Decided

October 24, 2023 April 22, 2024

Leah A. Vassallo argued the cause for appellant

(Kennedy & Vassallo, attorneys; Leah A. Vassallo, on

the brief).

Cheryl Turk Waraas argued the cause for respondent

(South Jersey Legal Services, attorneys; Kenneth M.

Goldman, Andrew Vazquez-Schroedinger, Douglas E.

Gershuny, on the briefs; and Lindsey Eveland, law

student, appearing pursuant to Rule 1:21-3(b), on the

briefs).

CJ Griffin argued the cause for amicus curiae Partners for

Women and Justice (Pashman Stein Walder Hayden,

attorneys; CJ Griffin, on the brief).

1

Mary M. McManus-Smith argued the cause for amicus

curiae Legal Services of New Jersey (Legal Services of

New Jersey, attorneys; Mary M. McManus-Smith,

Shoshana Gross, Monica Gural, and Dawn Miller, on the

brief).

JUSTICE WAINER APTER delivered the opinion of the Court.

This case, now before us for the second time, concerns the requirements

for a final protective order under the Sexual Assault Survivor Protection Act of

2015 (SASPA), N.J.S.A. 2C:14-13 to -21 (2023). 1 SASPA directs that in

determining whether to issue a final protective order, “the court shall consider

but not be limited to the following factors: (1) the occurrence of one or more

acts of nonconsensual sexual contact [or] sexual penetration . . . against the

alleged victim; and (2) the possibility of future risk to the safety or well-being

of the alleged victim.” N.J.S.A. 2C:14-16(a). 2

1

On July 24, 2023, Governor Murphy signed L. 2023, c. 127 into law,

substantially expanding SASPA and renaming it the Victim’s Assistance and

Survivor Protection Act. Those amendments went into effect on January 1,

2024. Because the amendments are not at issue in this case, this opinion relies

only on the text of N.J.S.A. 2C:14-13 to -21 in effect prior to January 1, 2024.

All citations to N.J.S.A. 2C:14-13 to -21 are to the pre-amendment language as

of December 31, 2023, and this opinion continues to refer to the law as

SASPA.

2

Although the Sexual Assault Survivor Protection Act is survivor-centered,

the text of the law uses the word “victim” or “alleged victim” and not the word

“survivor.” See N.J.S.A. 2C:14-13 to -21. When quoting the statute, we use

2

We hold that the plain language of N.J.S.A. 2C:14-16(a)(2) creates a

standard that is permissive and easily satisfied. Here, plaintiff testified that a

sexual assault “destroyed” her, she was intensely traumatized, and she was

“terrified” for her safety. The family court found her testimony credible.

Based on that testimony, the court held plaintiff had demonstrated a

“possibility of future risk” to her “safety or well-being.” We affirm.

I.

A.

We rely on the comprehensive discussion of the facts and procedural

history set forth in our first opinion in this case, C.R. v. M.T. (C.R. I), 248 N.J.

428 (2021). We add here only those details necessary to understand the

question presented and events that occurred after our remand in C.R. I.

On the evening of June 26, 2018, Clara went out to two bars with her

then-best-friend Sylvia. 3 Clara testified that later that night, she was sexually

assaulted by Martin, Sylvia’s cousin, on the floor of Martin’s garage. Martin

testified that the sexual penetration was consensual. Clara testified that it was

not. Martin never contacted or attempted to contact Clara after the incident.

the word “victim” or “alleged victim.” Otherwise, we use both “victim” and

“survivor.”

3

We refer to the parties and witnesses by the same pseudonyms used in C.R.

I.

3

Clara applied for a temporary protective order (TPO), and then a final

protective order (FPO), under SASPA. After hearing testimony from Clara,

Martin, and Sylvia, the trial court made explicit findings under N.J.S.A.

2C:14-16(a)(1) and (2). 4 The court found that (1) Clara had been “subjected to

nonconsensual sexual contact within the meaning of SASPA” because her

“extreme voluntary intoxication” made it impossible for her to consent to

sexual contact; and (2) there was a possibility of future risk to Clara’s safety or

well-being because Martin had been subjected to legal fees defending against

the SASPA FPO and “may now harbor a grudge against [Clara] which would

probably not have occurred but for these proceedings.” The court therefore

issued an FPO directing Martin to have no contact with Clara.

Martin appealed. The Appellate Division reversed and remanded,

directing the trial court to apply the “prostration of faculties” test to determine

whether Clara had been sufficiently intoxicated to be incapable of consenting

to sexual activity under N.J.S.A. 2C:14-16(a)(1). C.R. v. M.T., 461 N.J.

Super. 341, 350-51 (App. Div. 2019).

We granted Clara’s petition for certification, 241 N.J. 329 (2020), and

reversed the Appellate Division’s decision, C.R. I, 248 N.J. at 431. Rather

4

Throughout this litigation, the parties and courts referred to N.J.S.A. 2C:14-

16(a)(1) and (2) as the two required “prongs” of SASPA. We call the two

provisions “factors,” which more precisely reflects the statute’s plain text.

4

than the “prostration of faculties” test, we held that “the affirmative consent

standard articulated in” State in Interest of M.T.S., 129 N.J. 422 (1992), “is the

correct standard to be applied in determining whether sexual activity” was

consensual under SASPA. C.R. I, 248 N.J. at 445. Under M.T.S., “any act of

sexual penetration engaged in by the defendant without the affirmative and

freely-given permission of the victim to the specific act of penetration

constitutes the offense of sexual assault.” 129 N.J. at 444. We thus remanded

to the trial court “for reconsideration of . . . whether the sexual activity was

consensual or nonconsensual” under N.J.S.A. 2C:14-16(a)(1), “utilizing the

M.T.S. affirmative consent standard.” C.R. I, 248 N.J. at 447.

Although the Appellate Division in C.R. I had not addressed N.J.S.A.

2C:14-16(a)(2), the possibility of future risk to Clara’s safety or well-being,

see 461 N.J. Super. 341, we discussed it briefly, noting that it would be

relevant to the trial court’s reconsideration of the FPO on remand. 248 N.J. at

447-48. Recounting the trial court’s reasoning, discussed above, that Martin

had “through this process been subjected to legal fees and may now harbor a

grudge against [Clara] which would probably not have occurred but for these

proceedings,” we stated:

It cannot be that simply filing for a protective

order is sufficient to create “the possibility of future

risk to the safety or well-being of the alleged victim”

noted in prong two. If that were so, prong two would

5

be met in every single SASPA case. That could not

have been the Legislature’s intention.

Here, the factual findings that the trial court put

on the record appear to counter [Clara]’s establishing

prong two of SASPA, and the trial court relied on the

simple fact that [Clara] had sought a restraining order

to conclude that “it is more likely than not that a final

restraining order is appropriate” in this case. We

remand so that the trial court may expand upon its

abbreviated discussion of prong two and make

additional findings of fact that support a determination

either that the prong has been satisfied, or not, in

deciding whether to issue the final restraining order.

[Id. at 448.]

B.

On remand before a different judge, Clara testified that she continued,

more than three years later, to be intensely traumatized by the sexual assault.

Q. So since this time and after this event occurred [in

2018], how has been your well-being? How have you

dealt with this issue?

A. I am affected by what happened every day. I’ve

seen multiple therapists and I lay in bed at night and I

can’t sleep because I still feel like I’m in the garage

sometimes.

I have terrible intimacy issues. I can’t date because I

don’t trust anyone. I don’t -- I have a hard time making

friends because I don’t trust my friends anymore. I --

it destroyed me, honestly.

Like, I’ve lost my sense of self-worth. I lost

everything. I feel like -- some days, I feel like I’ll never

not be in that garage, honestly. Like, I wonder how I

6

can ever not be traumatized by this and I don’t think

that’s a possibility.

Q. Besides the well-being that you’ve just explained,

if this were (inaudible -- recording issue), do you fear

for your safety and the possibility of harm from this

Defendant?

A. I do. I really, I do. I think the only reason I have

any sort of peace of mind is because I know I have this

temporary right now and I’m so terrified that if I didn’t

have it, he would be angry that I’ve spent three years

just asking for this.

Just asking for a sense of security. I think he would

definitely harass me for challenging it. I feel like every

time -- I can’t even begin to explain the, like, terror that

I feel every day when I am unsure of my surroundings.

I can’t even -- I have a hard time even going shopping

by myself because what if something happens? How

will I defend myself? And if there’s no protective

order, then he has no consequences.

Martin did not testify, electing to rely on his testimony from the initial hearing.

The court found Clara’s testimony from the first and second hearings

“credible and believable” and Martin’s testimony from the first hearing “not

credible” and “not truthful.” On the first factor, N.J.S.A. 2C:14-16(a)(1), the

court therefore held that consent to sexual contact “was not affirmatively and

freely given.”

Turning to N.J.S.A. 2C:14-16(a)(2), the court noted that “the statute only

requires a possibility, as opposed to a probability, of future risk to the safety or

7

well-being of the alleged Victim. The plain meaning of the word ‘possible’

subsumes the notion that an event may or may not occur.” Acknowledging

that Martin had not attempted to contact Clara in the more than three years

since the incident, the court found that did “not foreclose the possibility of risk

to [Clara’s] safety or her well-being.”

The court detailed Clara’s testimony, set forth above, about the long-

term effects of the incident, including that Clara had seen multiple therapists,

had difficulty sleeping, had intimacy issues, and suffered ongoing

consequences that were “real and traumatizing.” Without an FPO, the court

concluded that any progress Clara had “made in therapy could be eviscerated.”

Finding “a significant risk to [Clara’s] psychological well-being should this

order not remain in effect,” the court held that Clara had satisfied N.J.S.A.

2C:14-16(a)(2). 5 It therefore ordered the FPO previously issued by the initial

trial court judge to remain in effect.

5

The first trial judge explicitly stated that “plaintiff is tasked in this case with

proving both elements of SASPA,” N.J.S.A.2C:14-16(a)(1) and (2), “by a

preponderance of the evidence,” and made factual findings as to each. The

remand judge likewise explicitly held that a survivor must prove “by a

preponderance of the evidence . . . that there is the possibility of future risk to

[her] safety or well-being,” and that this “prong” was satisfied.

8

C.

Martin appealed, arguing that Clara satisfied neither N.J.S.A. 2C:14-

16(a)(1) or (2) because the sexual activity was consensual, he posed no threat

to Clara, and her fear of him was “irrational.”

In an unpublished opinion, the Appellate Division affirmed the trial

court, concluding that “plaintiff satisfied her burden of demonstrating a

predicate act as defined under the first prong of SASPA[] and [that] there

exists a possibility of future risk to her safety or well-being as required by the

Act’s second prong.” On the first factor, the appellate court noted the

substantial deference owed to the Family Part’s findings of fact “[b]ecause of

its special expertise in family matters,” and held that the court’s conclusion on

the lack of consent was “supported by adequate, substantial, credible

evidence.” (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

Turning to the second factor, the court focused on the plain and ordinary

meaning of the terms in N.J.S.A. 2C:14-16(a)(2). Because the statute does not

define the words used in (a)(2), the Appellate Division relied on Merriam-

Webster’s Dictionary, observing that risk is defined as “possibility of loss or

injury”; safety as “the condition of being safe from . . . hurt, injury, or loss”;

and well-being as “the state of being happy, healthy, or prosperous.” The

appellate court concluded that in light of those definitions, and “in view of the

9

trial judge’s credibility and factual findings, we are satisfied plaintiff

demonstrated the possibility of the future risk of harm to her well-being or

safety.”

We granted Martin’s petition for certification limited to the

interpretation of N.J.S.A. 2C:14-16(a)(2). 254 N.J. 183 (2023). We also

granted leave to Legal Services of New Jersey (LSNJ) and Partners for Women

and Justice (Partners) to participate as amici curiae.

II.

Martin submits that the trial court’s interpretation of N.J.S.A. 2C:14-

16(a)(2) on remand, which the Appellate Division affirmed, sets the bar too

low because “unless one or the other party is dead, there is always a

possibility, however miniscule, of future risk.” That runs afoul of our holding

in C.R. I, Martin maintains, because it means that “prong two would be met in

every single SASPA case.” Moreover, according to Martin, “[a]n irrational

fear does not warrant a restraining order,” and “merely wanting a restraining

order for ‘peace of mind’” does not “meet the requirements of prong two.”

Because there was “absolutely no evidence placed on the record” that he posed

“any threat” to Clara or anyone else, and because the parties have had no

contact since the incident, Martin urges, “the Appellate Division erred as a

matter of law in . . . render[ing] prong two meaningless.”

10

Clara counters that the courts below correctly construed the statute’s

“plain, unambiguous language.” According to Clara, N.J.S.A. 2C:14-

16(a)(2)’s “requirement” that “alleged victims . . . show the possibility of

future risk to their ‘safety or well-being’” in order to obtain an FPO “is

satisfied by exactly the type of serious psychological trauma” that the trial

court found she “compellingly demonstrated in this case.” Martin, Clara

argues, asks the Court to ignore the plain language of N.J.S.A. 2C:14-16(a)(2)

and “apply the much more stringent test [for a Final Restraining Order (FRO)]

under [the] Prevention of Domestic Violence Act [PDVA], N.J.S.A. 2C:25-17

to -35.” Yet when the Legislature enacted SASPA in 2015, Clara maintains, it

intentionally chose not to incorporate the more rigorous requirements of the

PDVA, and it is “not a court’s ‘function to re-write a plainly written

enactment.’” (quoting J.H. v. R&M Tagliareni, LLC, 239 N.J. 198, 214

(2019)). Clara also submits that SASPA’s “broad and compelling remedial

purposes” are fully consistent with interpreting N.J.S.A. 2C:14-16(a)(2) to be

satisfied by “future risk to the psychological well-being of sexual assault

survivors.”

Amicus Partners for Women and Justice asserts that while “the Court

may be concerned that in some cases a liberal standard will make the issuance

of [a SASPA FPO] perfunctory, it is what the Legislature intended.” Partners

11

urges us to apply the “perfunctory and self-evident” standard established for

PDVA FROs by the Appellate Division in A.M.C. v. P.B., 447 N.J. Super.

402, 417 (App. Div. 2016), to SASPA FPOs as well, and thus hold that

SASPA’s second factor is automatically satisfied whenever the predicate act is

“nonconsensual sexual penetration (i.e., rape) or other egregious acts of sexual

violence.” Partners also emphasizes that a SASPA FPO carries consequences

for a respondent that are less significant than a PDVA FRO.

Amicus LSNJ submits that the Legislature “molded SASPA to the

contours of the PDVA” in certain ways, and the “hand-in-glove connections

between the two statutes makes for a sharp contrast where the Legislature

incorporated dissimilar language and standards into SASPA.” Focusing on

one such distinction, LSNJ contrasts a PDVA FRO, which requires that relief

be “necessary to prevent further abuse,” with SASPA’s consideration of “the

possibility of future risk to the safety or well-being of the alleged victim.”

LSNJ argues this “must be viewed as [a] deliberate choice[] by the Legislature

that represent[s] the intent to achieve distinct standards.” LSNJ also

encourages us to establish a list of factors that courts should consider in

determining whether N.J.S.A. 2C:14-16(a)(2) is satisfied.

12

III.

A.

We defer to a trial court’s factual findings “when supported by adequate,

substantial, credible evidence.” Cesare, 154 N.J. at 411-12 (1998). “That

deference is especially appropriate ‘when the evidence is largely testimonial

and involves questions of credibility.’” MacKinnon v. MacKinnon, 191 N.J.

240, 254 (2007) (quoting Cesare, 154 N.J. at 412). We will therefore leave a

trial court’s factual findings undisturbed “unless they ‘went so wide of the

mark that a mistake must have been made.’” Ibid. (quoting DYFS v. M.M.,

189 N.J. 261, 279 (2007)).

We review questions of statutory interpretation de novo, owing no

deference to the legal conclusions of the trial court or the Appellate Division.

State v. Fuqua, 234 N.J. 583, 591 (2018).

In cases of statutory interpretation, we start with “the statutory

language.” DiProspero v. Penn, 183 N.J. 477, 492 (2005). “We ascribe to the

statutory words their ordinary meaning and significance and read them in

context with related provisions so as to give sense to the legislation as a

whole.” Ibid. (citation omitted). “[W]hen the language of a statute is clear on

its face,” our “sole function . . . is to enforce it according to its terms.”

Cashin v. Bello, 223 N.J. 328, 335 (2015) (alteration in original) (quoting

13

Hubbard v. Reed, 168 N.J. 387, 392 (2001)). We “may neither rewrite a

plainly-written enactment of the Legislature nor presume that the Legislature

intended something other than that expressed by way of the plain language.”

Ibid. (quoting O’Connell v. State, 171 N.J. 484, 488 (2002)).

In construing a statute’s plain language, we “strive[] for an interpretation

that gives effect to all of the statutory provisions and does not render any

language inoperative, superfluous, void[,] or insignificant.’” In re

DiGuglielmo, 252 N.J. 350, 360 (2022) (second alteration in original) (quoting

Sanchez v. Fitness Factory Edgewater, LLC, 242 N.J. 252, 261 (2020)).

Moreover, “[w]hen ‘the Legislature has carefully employed a term in one place

and excluded it in another, it should not be implied where excluded.’” Higgins

v. Pascack Valley Hosp., 158 N.J. 404, 419 (1999) (quoting GE Solid State,

Inc. v. Dir., Div. of Tax’n, 132 N.J. 298, 307-08 (1993)).

B.

As we detailed in C.R. I, SASPA, which was enacted in 2015, allows

survivors of sexual assault who cannot seek restraining orders under the

Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17

to -35, to seek temporary and permanent civil protective orders. 248 N.J. at

441. Specifically, “[a]ny person alleging to be a victim of nonconsensual

sexual contact, sexual penetration, or lewdness, or any attempt at such

14

conduct,” who is not eligible for a restraining order as a “victim of domestic

violence” under the PDVA, may apply for a protective order under SASPA.

N.J.S.A. 2C:14-14(a)(1), -16.

The PDVA defines “victim of domestic violence” as a person “who has

been subjected to domestic violence” by a spouse, former spouse, household

member, a person with whom the victim has or will have a child, or a person

with whom the victim had a dating relationship. N.J.S.A. 2C:25-19(d). A

person who is “subjected to sexual violence in a random encounter” or by

someone with whom they have “less than a dating relationship” therefore

cannot seek a restraining order under the PDVA -- “SASPA was intended to

fill this void.” R.L.U. v. J.P., 457 N.J. Super. 129, 135 (App. Div. 2018).

The standard for granting a SASPA protective order differs depending

on whether the applicant seeks a temporary or final order.

TPOs may be granted on an emergency and ex parte basis “when

necessary to protect the safety and well-being of an alleged victim on whose

behalf the relief is sought.” N.J.S.A. 2C:14-15(a). In addition, a court “shall”

grant a TPO if it “determines that the applicant is a victim of nonconsensual

sexual contact, sexual penetration, or lewdness, or any attempt at such

conduct, and qualifies for such relief” under N.J.S.A. 2C:14-14. See N.J.S.A.

2C:14-15(b). A TPO, which “shall be granted upon good cause shown,” id. at

15

(d), may include “any relief necessary to protect the safety and well-being of

an alleged victim,” id. at (a). Examples of possible forms of relief include an

order prohibiting the respondent from having any contact with the victim or

the victim’s family members, and an order prohibiting the respondent from

entering the victim’s home, school, or work. Id. at (e)(1) to (6).

The standard for granting an FPO, by contrast, is a preponderance of the

evidence. Importantly, an FPO does not require a showing that it is “necessary

to protect the safety and well-being” of the victim; it requires only the

“possibility of future risk to the safety or well-being of the alleged victim.”

The statute sets forth the procedure and requirements for obtaining an FPO in

N.J.S.A. 2C:14-16(a):

A hearing [for an FPO] shall be held in the Superior

Court within 10 days of the filing of an application [for

a TPO] . . . . At the hearing, the standard for proving

the allegations made in the application for a protective

order shall be a preponderance of the evidence. The

court shall consider but not be limited to the following

factors:

(1) the occurrence of one or more acts of

nonconsensual sexual contact, sexual penetration, or

lewdness, or any attempt at such conduct, against the

alleged victim; and

(2) the possibility of future risk to the safety or

well-being of the alleged victim.

[N.J.S.A. 2C:14-16(a) (emphasis added).]

16

Although the statute defines the terms “sexual contact,” “sexual penetration,”

and “lewdness” used in factor one, see N.J.S.A. 2C:14-14(a)(1), it does not

define any of the words included in factor two.

The remainder of N.J.S.A. 2C:14-16 sets forth additional instructions for

FPOs. For example, a court may not deny an FPO due to the “alleged victim’s

failure to report the incident to law enforcement; the alleged victim’s or the

respondent’s alleged intoxication; whether the alleged victim did or did not

leave the premises to avoid [the] nonconsensual sexual contact . . . ; or the

absence of signs of physical injury to the alleged victim.” N.J.S.A. 2C:14-

16(b). And “evidence of the alleged victim’s previous sexual conduct or

manner of dress at the time of the incident shall not be admitted” in any FPO

proceeding. N.J.S.A. 2C:14-16(c).

N.J.S.A. 2C:14-16(e) then sets forth a necessary precondition for the

issuance of an FPO and what such an order must prohibit.

A final protective order issued pursuant to this section

shall be issued only after a finding or an admission is

made that the respondent committed an act of

nonconsensual sexual contact, sexual penetration, or

lewdness, or any attempt at such conduct, against the

alleged victim. A final protective order shall:

(1) prohibit the respondent from having contact

with the victim; and

(2) prohibit the respondent from committing any

future act of nonconsensual sexual contact, sexual

17

penetration, or lewdness, or any attempt at such

conduct, against the victim.

[N.J.S.A. 2C:14-16(e).]

N.J.S.A. 2C:14-16(f) lists additional relief, identical to restrictions that can be

imposed on a respondent as part of a TPO under N.J.S.A. 2C:14-15(e)(2) to

(6), that an FPO may include.

Finally, pursuant to N.J.S.A. 2C:14-16(i), either party can file a petition

with the court “to dissolve or modify a final protective order.” In adjudicating

the petition, the court must “consider whether a material change in

circumstances has occurred” that would render the continuance of the FPO

“inequitable, oppressive or unjust taking into account . . . the desire of the

victim for the continuation of the protective order, the potential for contact

between the parties, the history of the respondent’s violations of the protective

order or criminal convictions, and any other factors that the court may find

relevant.” Ibid.

C.

As earlier noted, SASPA explicitly allows orders of protection only for

those who are “not eligible for a restraining order as a ‘victim of domestic

violence’” under the PDVA. N.J.S.A. 2C:14-14(a)(1). As a complement to

the PDVA, SASPA mirrors the PDVA in certain respects, and diverges from it

in others. Both bear mention here.

18

Like SASPA, the PDVA allows survivors to “seek emergency, ex parte

relief.” N.J.S.A. 2C:25-28(f). Under SASPA, that relief is a TPO; under the

PDVA, it is a temporary restraining order (TRO). See N.J.S.A. 2C:14-15(a);

2C:25-28(f). The permissive standards for a SASPA TPO and a PDVA TRO

are nearly identical: a judge may issue a PDVA TRO “when necessary to

protect the life, health or well-being of a victim,” N.J.S.A. 2C:25-28(f),

whereas a SASPA TPO may be issued “when necessary to protect the safety

and well-being of an alleged victim,” N.J.S.A. 2C:14-15(a).

The procedures for seeking a PDVA final restraining order (FRO) and a

SASPA FPO are also the same. Both require that a hearing be held within ten

days of the filing of the application for a TRO or TPO. See N.J.S.A. 2C:25-

29(a); N.J.S.A. 2C:14-16(a). Both provide that at the hearing, the standard for

proving the allegations in the complaint or application shall be a

preponderance of the evidence. See ibid. And both provide that “[t]he court

shall consider but not be limited to the following factors.” Ibid. (emphasis

added).

However, SASPA then lists only two factors that the court shall

consider: “(1) the occurrence of one or more acts of nonconsensual sexual

contact, sexual penetration, or lewdness . . . ; and (2) the possibility of future

19

risk to the safety or well-being of the alleged victim.” N.J.S.A. 2C:14-16(a)

(emphasis added). The PDVA, in contrast, lists six:

(1) The previous history of domestic violence between

the plaintiff and defendant, including threats,

harassment and physical abuse;

(2) The existence of immediate danger to person or

property;

(3) The financial circumstances of the plaintiff and

defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the

protection of the victim’s safety; and

(6) The existence of a verifiable order of protection

from another jurisdiction.

[N.J.S.A. 2C:25-29(a) (emphasis added).]

Four of the six PDVA factors could not have applied to SASPA because

a SASPA FPO is available only to a person who did not have a close prior

relationship with the alleged perpetrator. However, the second factor for a

PDVA FRO does not speak to a prior relationship between the parties, and the

Legislature therefore could have duplicated it in SASPA. It did not. Instead,

the Legislature prescribed SASPA’s second factor, instructing a court to

consider “the possibility of future risk to the safety or well-being of the alleged

20

victim,” N.J.S.A. 2C:14-16(a)(2), rather than “[t]he existence of immediate

danger to person or property,” N.J.S.A. 2C:25-29(a)(2).

In addition, the consequences to a defendant of a PDVA FRO are

drastically different from the consequences to a respondent of a SASPA FPO.

Recall that a SASPA FPO must only “(1) prohibit the respondent from having

contact with the victim; and (2) prohibit the respondent from committing any

future act of nonconsensual sexual contact, sexual penetration, or lewdness . . .

against the victim.” N.J.S.A. 2C:14-16(e). And it may include additional

relief barring the respondent from entering the victim’s home, school, or work.

See id. at (f)(1) to (5).

Penalties in a PDVA FRO, on the other hand, can be far more severe. A

defendant must “immediate[ly] surrender . . . any firearm,” and an FRO must

prohibit the defendant from purchasing, owning, or possessing any weapons.

N.J.S.A. 2C:25-29(b). An FRO can then include nineteen additional forms of

relief, including an order: granting exclusive possession to a plaintiff of a

home the plaintiff and defendant had shared, while requiring the defendant to

continue making payments on the home; directing the defendant to pay money

damages to the plaintiff, including the cost of counseling, moving expenses,

attorney’s fees, damages for pain and suffering, and punitive damages;

granting the plaintiff “temporary possession of specified personal property,”

21

such as a car; “awarding temporary custody of a minor child” to the plaintiff;

requiring the defendant “to receive professional domestic violence

counseling”; and requiring the defendant “to undergo a psychiatric

evaluation.” Id. at (b)(1) to (19).

IV.

SASPA’s plain language and context lead us to conclude that Clara’s

testimony on remand was sufficient for the trial court to find the statute

satisfied, and order the FPO to remain in effect. We therefore affirm the

judgment of the Appellate Division.

A.

On its face, the text of N.J.S.A. 2C:14-16(a)(2), requiring a court to

consider “the possibility of future risk to the safety or well-being of the alleged

victim,” creates a permissive standard that is easily satisfied.

Because SASPA does not define the words “possibility,” “risk,”

“safety,” or “well-being,” we afford the terms their “generally accepted

meaning, according to the approved usage of the language.” See N.J.S.A. 1:1-

1. Like the Appellate Division, we turn to dictionary definitions for guidance.

The New Oxford American Dictionary defines “possibility” as “a thing

that may happen or be the case.” New Oxford American Dictionary 1365 (3d

ed. 2010). The word “possibility” therefore does not require that something

22

will definitely happen, will probably happen, or even will likely happen; it

simply requires a chance that something “may happen or be the case.” “Risk”

is defined as “a situation involving exposure to danger” or “the possibility that

something unpleasant or unwelcome will happen.” Id. at 1507. “Safety” is

“the condition of being protected from or unlikely to cause danger, risk, or

injury.” Id. at 1537. And “well-being” is a “state of being comfortable,

healthy, or happy.” Id. at 1961.

The plain language of factor two thus requires a court to consider

whether there is a chance that a survivor may be exposed to physical danger,

risk, or injury, or may be exposed to something emotionally unwelcome or

unpleasant that could make them feel uncomfortable, unhealthy, or unhappy.

And because the language of factor two is centered on the safety or well-being

of the victim-survivor, a survivor’s own testimony regarding possible future

risks to their safety or emotional well-being can suffice.

Our reading of the plain text of factor two as creating a lenient and easy-

to-satisfy standard is reinforced by context -- the ways in which the

Legislature intentionally distinguished a SASPA FPO from both a SASPA

TPO and a PDVA FRO.

As earlier noted, a SASPA TPO may be granted “when necessary to

protect the safety and well-being of an alleged victim on whose behalf the

23

relief is sought,” N.J.S.A. 2C:14-15(a) (emphasis added). The Legislature

could have used the same language for a SASPA FPO as well, requiring that it

be “necessary to protect” a victim. It did not. Instead, an FPO requires

consideration only of the “possibility of future risk to the safety or well-being

of the alleged victim.” N.J.S.A. 2C:14-16(a)(2) (emphasis added). A

“possibility of future risk” is less demanding than “necessary” protection. We

must respect that legislative choice. See State v. Ferguson, 238 N.J. 78, 102

(2019) (“Different words used in the same, or a similar, statute are assigned

different meanings whenever possible.” (quoting In re Expungement Petition

of J.S., 223 N.J. 54, 74 n.5 (2015))).

Similarly, in crafting SASPA, the Legislature intentionally copied much

of the language of the PDVA, including the opening sentences of N.J.S.A.

2C:14-16(a). See supra at ___ (slip op. at 18-19); N.J.S.A. 2C:25-29(a). But

the PDVA’s second factor requires courts to consider “the existence of

immediate danger to person or property,” N.J.S.A. 2C:25-29(a)(2), whereas

SASPA’s second factor requires consideration only of “the possibility of future

risk to the safety or well-being” of the victim, N.J.S.A. 2C:14-16(a).

While a “possibility” is something that may occur in the future, in order

to “exist[],” something must be presently occurring. And a “future risk” to a

person’s “safety or well-being,” is of course far less demanding than an

24

“immediate danger” to that person. Rather than importing the PDVA’s second

factor, the Legislature thus used far broader language in SASPA. Especially

because the statutes are identical in so many other respects, those differences

must be treated as deliberate. See State v. Ryan, 249 N.J. 581, 599 (2022) (“It

is the Legislature’s prerogative to impose a requirement in one context but not

another; it is our duty to treat that distinction as meaningful.”).

We must respect the Legislature’s decision to create a standard for a

SASPA FPO that is broad and permissive, both on its face and as compared

with a SASPA TPO and a PDVA FRO.

B.

Applying this analysis, we defer to the trial court’s factual findings

because they are supported by substantial evidence, and we find no error in the

court’s legal conclusion.

Clara testified that she is “affected by what happened every day.” She

explained that she has seen multiple therapists, cannot sleep, has a hard time

making friends or trusting people, and has “terrible intimacy issues.” She told

the court that she feared for her safety, felt terrified each time she was unsure

of her surroundings, and had a hard time going shopping on her own. She

detailed how she had lost her “sense of self-worth,” and how the sexual assault

had “destroyed [her,] honestly.”

25

The remand judge found her testimony “credible and believable.” The

judge concluded that there was a “possibility of future risk” to Clara’s “safety

or well-being” if the FPO put in place by the original trial judge were to be

dissolved or modified. He therefore ordered the FPO to remain in effect.

We are not persuaded by Martin’s claims of error. Martin first argues

that requiring only a “possibility of future risk” to a victim’s safety or well-

being runs afoul of our analysis in C.R. I, because “unless one or the other

party is dead, there is always a possibility, however miniscule, of future risk”

and factor two would thus be met “in every single SASPA case.”

Martin misconstrues our statement in C.R. I that “[i]t cannot be that

simply filing for a protective order is sufficient to create ‘the possibility of

future risk to the safety or well-being of the alleged victim,’” or “prong two

would be met in every single SASPA case.” 248 N.J. at 448. That means only

that the procedural step of requesting an FPO cannot, in and of itself, satisfy

one of the two substantive factors that are considered to obtain an FPO. It

does not mean that negative consequences of sexual assault, such as trauma,

anxiety, or fear, can be ignored simply because they may exist in many SASPA

cases.

“Our courts have recognized that, in sexual assault cases, ‘the wellbeing

of . . . victims demands heightened protection’ because there is a ‘likelihood of

26

emotional trauma and mental distress.’” State v. Chambers, 252 N.J. 561, 584

(2023) (omission in original) (quoting State v. D.R.H., 127 N.J. 249, 259

(1992)). C.R. I does not require courts to ignore the precise forms of trauma

that victims of sexual assault are most likely to experience when analyzing

N.J.S.A. 2C:14-16(a)(2). On the contrary, the plain language of the provision

makes clear that credible testimony about such emotional and psychological

harm can be sufficient to satisfy SASPA’s second factor.

Martin also contends that “[a]n irrational fear does not warrant a

restraining order,” and that Clara’s fears are unreasonable because he has not

attempted to contact her in the three years since the incident. But nothing in

the plain language of N.J.S.A. 2C:14-16(a)(2) requires a survivor’s belief

about the possibility of future risk to their safety or well-being to be

objectively reasonable.

The Legislature is familiar with a reasonable person standard, and has

chosen to employ it in many other statutes. 6 Not so here. The word

6

See, e.g., N.J.S.A. 2C:12-10(b) (“A person is guilty of stalking . . . if he

purposefully or knowingly engages in a course of conduct directed at a specific

person that would cause a reasonable person to fear for his safety . . . .”);

N.J.S.A. 2C:21-25(a) (“A person is guilty of a crime if the person . . .

transports or possesses property known or which a reasonable person would

believe to be derived from criminal activity. . . .”); N.J.S.A. 2C:14-9(a) (“An

actor commits a crime of the fourth degree if, knowing that he is not licensed

or privileged to do so, and under circumstances in which a reasonable person

27

“reasonable” does not appear in SASPA, and we “decline [respondent’s]

invitation to read into [the law] a requirement that a [survivor’s] fear of

encountering the [respondent] must be objectively reasonable under the

circumstances.” K.N.B. v. M.D., 259 A.3d 341, 351 (Pa. 2021). As the

Pennsylvania Supreme Court held regarding Pennsylvania’s Protection of

Victims of Sexual Violence or Intimidation Act, “there is simply no textual

support for the conclusion that a . . . plaintiff’s fear of harm must be analyzed

using an objective, reasonable-person standard.” Ibid.

C.

The concurring opinion disagrees with this reading of the statute, and

would hold that “[o]nce a victim proves by a preponderance of the evidence

that a respondent committed a predicate act of nonconsensual sexual contact,

sexual penetration, or lewdness, or any attempt at such conduct . . . the victim

is automatically entitled to an FPO” under N.J.S.A. 2C:14-16(e). Post at ___

(slip op. at 2) (internal quotation marks omitted). According to the

concurrence, “the possibility of future risk to the safety or well-being of the

alleged victim” under N.J.S.A. 2C:14-16(a)(2) is not relevant to whether a

would know that another may expose intimate parts or may engage in sexual

penetration or sexual conduct, he observes another person without that

person’s consent and under circumstances in which a reasonable person would

not expect to be observed.”).

28

survivor can obtain an FPO under -16(a); it is only “one factor to consider

when fashioning additional relief in the FPO under N.J.S.A. 2C:14-16(f).”

Post at ___ (slip op. at 2).

No party or amicus has so argued before this Court, the trial court, or the

Appellate Division. Perhaps that is because the argument contravenes the

plain language of N.J.S.A. 2C:14-16(a), (e), and (f).

Had the Legislature wanted to prescribe that an FPO must automatically

issue anytime a judge finds, or a respondent admits to, a predicate act, it could

have said so in N.J.S.A. 2C:14-16(a). It also could have deleted large portions

of N.J.S.A. 2C:14-16(a), moved N.J.S.A. 2C:14-16(e) up to the first provision,

and written it as: “A final protective order shall be issued after a finding or an

admission is made that the respondent committed an act of nonconsensual

sexual contact, sexual penetration, or lewdness, or any attempt at such

conduct, against the alleged victim.”

It did not. The words “a final protective order issued pursuant to this

section,” rather than “pursuant to this subsection,” in N.J.S.A. 2C:14-16(e),

most naturally refer back to N.J.S.A. 2C:14-16(a), which sets forth, in detail,

the who, what, when, where, why, and how of an FPO. And the words “shall

be issued only after a finding or admission is made” in N.J.S.A. 2C:14-16(e)

29

indicate that while the finding or admission of a predicate act is a necessary

condition to the issuance of an FPO, it is not itself sufficient.

Similarly, had the Legislature wanted to mandate that a trial court

consider “the possibility of future risk to the safety or well-being of the alleged

victim,” N.J.S.A. 2C:14-16(a)(2), only “when fashioning additional relief in

the FPO under N.J.S.A. 2C:14-16(f),” post at ___ (slip op. at 2), it could have

done so.

Again, it did not. Simply put, there is no textual connection between

satisfying N.J.S.A. 2C:14-16(a)(2) and the imposition of additional relief

under N.J.S.A. 2C:14-16(f). N.J.S.A. 2C:14-16(a)(2) does not mention

subsection (f) and says nothing about additional forms of relief that an FPO

can include. Likewise, subsection (f) does not reference N.J.S.A. 2C:14-

16(a)(2) or mention “the possibility of future risk to the safety or well-being of

the alleged victim.” And subsection (f) explicitly allows for all its listed forms

of relief to be applied in any FPO, not merely where a court finds “the

possibility of future risk to the safety or well-being of the alleged victim.”

N.J.S.A. 2C:14-16(a)(2), (f).

The concurrence asserts that its interpretation is compelled by “[a] full

reading of SASPA’s text.” Post at ___ (slip op. at 12). But the concurrence

actually gives short shrift to the words in N.J.S.A. 2C:14-16(a) to (d), reads the

30

word “only” out of subsection (e), and reads the words “the possibility of

future risk to the safety or well-being of the alleged victim” into subsection (f).

We decline to adopt that approach.

We also decline LSNJ’s invitation to adopt a list of factors for courts to

consider in determining whether a survivor has shown “the possibility of

future risk to the[ir] safety or well-being” under N.J.S.A. 2C:14-16(a)(2). Had

the Legislature wanted to import into SASPA the six factors listed in the

PDVA, N.J.S.A. 2C:25-29(a)(1) to (6), it could have done so. Similarly,

although the Legislature set forth four factors for a court to consider in

determining whether a SASPA FPO should be dissolved or modified under

N.J.S.A. 2C:14-16(i), including “the potential for contact between the parties”

and “the history of the respondent’s violations of the protective order or

criminal convictions,” it did not include any of those factors in the list of what

a court “shall” consider in deciding whether to issue an FPO to begin with,

N.J.S.A. 2C:14-16(a). We therefore do not add those factors, or any others the

Legislature did not include, to N.J.S.A. 2C:14-16(a)(2). See, e.g., DiProspero,

183 N.J. at 492 (“We cannot ‘write in an additional qualification which the

Legislature pointedly omitted in drafting its own enactment . . . .’” (quoting

Craster v. Bd. of Comm’rs of Newark, 9 N.J. 225, 230 (1952))).

31

We likewise do not reach Partners’ request, echoed by LSNJ, to apply

the “perfunctory and self-evident” standard established for PDVA FROs by the

Appellate Division in A.M.C. v. P.B., 447 N.J. Super. at 417, to SASPA FPOs,

and to therefore hold that SASPA’s second factor is automatically satisfied

whenever the predicate act is “nonconsensual sexual penetration (i.e., rape) or

other egregious acts of sexual violence.” Clara did not include such a request

in her briefing to this Court or any court. “[A]s a general rule, the Court ‘does

not consider arguments that have not been asserted by a party, and are raised

for the first time by an amicus curiae.’” State in Int. of A.A., 240 N.J. 341,

359 n.1 (2020) (quoting State v. J.R., 227 N.J. 393, 421 (2017)). And the issue

raised by Partners is not necessary to decide this case, as Clara clearly put

forth sufficient evidence to show a “possibility of future risk” to her “safety or

well-being” under N.J.S.A. 2C:14-16(a)(2).

We make one final comment. Because three years elapsed between the

issuance of the initial FPO and the second FPO hearing, Clara was able to

provide testimony during the remand hearing about mental health treatment

she had been receiving and how the sexual assault was still impacting her life

several years later. The concurrence expresses concern that the unique

procedural posture of this case, in which Clara was able to testify with “the

benefit of hindsight,” “illustrates how N.J.S.A. 2C:14-16(a)(2)’s standard will

32

not always be ‘easily satisfied.’” Post at ___ (slip op. at 27). We disagree.

Our discussion of Clara’s testimony, see supra at ___ (slip op. at 6-7, 25), is

not intended to imply that such evidence of psychological symptoms or

treatment is necessary to satisfy N.J.S.A. 2C:14-16(a)(2). Indeed, because an

FPO hearing is generally required to take place within ten days of the filing of

an application for a SASPA TPO, see N.J.S.A. 2C:14-16(a)(2), a survivor will

likely not yet have received any mental health treatment. Expert testimony or

documentation of psychological treatment is therefore not required. Neither,

of course, is evidence of symptoms over a period of years.

V.

We have every confidence that trial judges will ably consider “the

possibility of future risk to the safety or well-being of the alleged victim” in

accordance with the plain language of N.J.S.A. 2C:14-16(a)(2) and the

guidance provided in this opinion.

For the foregoing reasons, the judgment of the Appellate Division is

affirmed.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON,

PIERRE-LOUIS, and NORIEGA join in JUSTICE WAINER APTER’s opinion.

JUSTICE FASCIALE filed a concurrence.

33

C.R.,

Plaintiff-Respondent,

v.

M.T.,

Defendant-Appellant.

JUSTICE FASCIALE, concurring.

I disagree with the notion that to obtain a final protective order (FPO)

under the Sexual Assault Survivor Protection Act of 2015 (SASPA), N.J.S.A.

2C:14-13 to -21 (2023) -- now known as the Victim’s Assistance and Survivor

Protection Act (VASPA) -- a victim must speculate about whether there exists a

“possibility of future risk to [their] safety or well-being.” 1 The plain language

1

Like the majority, I use SASPA throughout this opinion instead of VASPA.

In July 2023, Governor Philip D. Murphy signed legislation amending SASPA

to broaden its protective scope for victims of alleged sexual contact and other

predicate acts. See Office of the Governor, Press Release: Governor Murphy

Signs Legislation Expanding Access to Temporary Protective Orders (July 24,

2023), https://www.nj.gov/governor/news/news/562023/approved/20230724c.s

html. The amendment became effective January 1, 2024. Just like SASPA,

VASPA “[a]uthorizes issuance of protective orders for certain victimized

persons in situations for which domestic violence statutes do not apply due to

lack of familial or dating relationship between victim and offending actor.” S.

1517 Synopsis (Second Reprint, Feb. 10, 2022). It also adds two predicate

acts -- stalking and cyber-harassment -- and expressly defines “emotional

of SASPA requires no such conjecture. Once a victim proves by a

preponderance of the evidence that a respondent committed a predicate act of

“nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt

at such conduct,” N.J.S.A. 2C:14-16(a)(1), the victim is automatically entitled

to an FPO prohibiting the respondent from contacting the victim and

committing further predicate acts, see N.J.S.A. 2C:14-16(e). The “possibility”

of what may or may not happen in the future -- even if “permissive and easily

satisfied,” ante at ___ (slip op. at 3) -- is simply one factor to consider when

fashioning additional relief in the FPO under N.J.S.A. 2C:14-16(f). It is not an

element of proof that a victim must establish to obtain an FPO.

This is a unique case because the victim here testified at two FPO

hearings that were over three years apart and before different FPO judges.

Two FPO hearings occurred because there was a remand. See C.R. v. M.T.

distress” in the context of “stalking.” L. 2023, c. 127, § 2 (codified at N.J.S.A.

2C:14-14). Pertinent to this case, VASPA did not change the burden of proof a

victim must surmount to obtain final protection but indeed expanded

protections for victims who could not get relief previously under the

Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17

to -35. Given that VASPA did not change any provision relevant to the

issuance of an FPO, my interpretation of SASPA applies in full force to

VASPA. And because the VASPA amendments are not at issue in this case, as

the majority stated, this opinion too relies on the text of N.J.S.A. 2C:14-13 to -

21 in effect prior to January 1, 2024. All citations to N.J.S.A. 2C:14-13 to -21

are to the pre-amendment language as of December 31, 2023.

2

(C.R. I), 248 N.J. 428 (2021). At the first FPO hearing in 2018, approximately

one month after the occurrence of the predicate act, the initial FPO judge

found that there existed “the possibility of future risk to the safety or well-

being of the alleged victim,” id. at 436, despite citing no evidence. The judge

instead relied only on the filing for a protective order to make that finding.

Ibid. That is why the Court in C.R. I stated that “[i]t cannot be that simply

filing for a protective order is sufficient to create ‘the possibility of future risk

to the safety or well-being of the alleged victim’ noted in [factor] two.” Id. at

448 (quoting N.J.S.A. 2C:14-16(a)(2)). 2

Instead of concluding that there existed sufficient evidence in the record

to support a finding that there is a “possibility of future risk to the safety or

well-being of the alleged victim,” the Court in C.R. I correctly determined that

the “factual findings that the [initial FPO judge] put on the record appear to

counter plaintiff’s establishing” that there is a “possibility of future risk to the

safety or well-being of the alleged victim.” Ibid. (emphasis added). The Court

therefore remanded “so that the trial court may . . . make additional findings of

2

I agree with the majority that SASPA’s plain text supports the conclusion

that N.J.S.A. 2C:14-16(a)(1) and (2) are “factors” and not “prongs,” contrary

to the parties’ contentions. Ante at ___ (slip op. at 4 n.4). But I disagree that

the second factor -- N.J.S.A. 2C:14-16(a)(2) -- needs to be proven by a victim

as an element before the issuance of the FPO. Consideration of factor two is

not an element of proof to obtain the FPO; instead, it is relevant to fashioning

additional protection under N.J.S.A. 2C:14-16(f).

3

fact [on factor two] that support a determination either that the [factor] has

been satisfied, or not, in deciding whether to issue the final [protective] order.”

Ibid. (emphasis added). Although the majority here determined that “the plain

language of N.J.S.A. 2C:14-16(a)(2) creates a standard that is permissive and

easily satisfied,” ante at ___ (slip op. at 3), the first FPO judge’s inability to

point to such evidence belies that determination and prompted, in part, C.R. I’s

remand instructions.

On remand, a different judge, over three years later, heard additional

testimony from the victim, who instead of speculating about the “possibility of

future risk to [her] safety or well-being,” testified specifically about how the

predicate act, which occurred over three years prior, impacted her. After

hearing this new testimony, the second judge decided to keep the original FPO

in effect, which included additional protections under N.J.S.A. 2C:14-16(f).

That procedure is highly uncommon. As I will later explain, this

irregularity underscores two critical points: (1) victims will likely struggle to

produce evidence shortly after a predicate act occurs that demonstrates there

exists a “possibility of future risk to the safety or well-being of the alleged

victim,” and (2) final protection under SASPA is not dependent on speculation

that there exists a “possibility of future risk to the safety or well-being of the

alleged victim.”

4

I would thus hold that the victim here is entitled to the FPO solely

because she proved at the first FPO hearing the occurrence of a predicate act

under N.J.S.A. 2C:14-16(a)(1). No other proof was required for her to obtain

the minimum protection available under SASPA and mandated by N.J.S.A.

2C:14-16(e). Furthermore, it is equally clear to me that the victim -- who

amplified her testimony three-plus years later at a remand hearing -- is entitled

to additional relief under N.J.S.A. 2C:14-16(f), not based on the initial FPO

record, but rather, on the subsequent findings made by the remand judge that

she suffered a “possibility of future risk to [her] safety or well-being” under

N.J.S.A. 2C:14-16(a)(2). 3

I therefore write separately.

3

This Court reviews the interpretation of statutes de novo. Ante at ___ (slip

op. at 13) (quoting State v. Fuqua, 234 N.J. 583, 591 (2018)). In doing so, the

Court’s role is to discern and effectuate the Legislature’s intent which first

involves analyzing the plain text of the statute, and then resorting to extrinsic

sources if the text is ambiguous. State v. S.B., 230 N.J. 62, 67-68 (2017);

DiProspero v. Penn, 183 N.J. 477, 492 (2005); see also Young v. Schreing

Corp., 141 N.J. 16, 25 (1995) (“In the interpretation of a statute our overriding

goal has consistently been to determine the Legislature’s intent.” (quoting

Roig v. Kelsey, 135 N.J. 500, 515 (1994))). Notably, Partners for Women and

Justice argue in its merits brief that based on a plain reading of SASPA,

N.J.S.A. 2C:14-16(a)(2) is not a required element of proof for the issuance of

an FPO.

5

I.

In 2015, Governor Christopher J. Christie signed SASPA into law

effective May 7, 2016. Unlike the Prevention of Domestic Violence Act of

1991 (PDVA), N.J.S.A. 2C:25-17 to -35, which protects victims of domestic

violence, SASPA protects “[a]ny person alleging to be a victim of

nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt

at such conduct, and who is not eligible for a restraining order as a ‘victim of

domestic violence’ as defined by the” PDVA. N.J.S.A. 2C:14-14(a)(1)

(emphases added). 4 SASPA allows those who are not protected under the

PDVA to “file an application with the Superior Court . . . alleging the

commission of such conduct or attempted conduct and seeking a temporary

protective order [(TPO)].” Ibid.

II.

Preliminarily, I briefly discuss the PDVA and SASPA given the natural

tendency to compare the elements of proof for the issuance of a PDVA final

4

The PDVA defines a “[v]ictim of domestic violence” as “any person who is

18 years of age or older or who is an emancipated minor and who has been

subjected to domestic violence by a spouse, former spouse,” household

member, someone with whom “the victim has had a dating relationship,” or

“any person, regardless of age, who has been subjected to domestic violence

by a person with whom the victim has a child in common” or plans to have a

child and “one of the parties is pregnant.” N.J.S.A. 2C:25-19(d).

6

restraining order (FRO) with that of an FPO under SASPA. As the majority

correctly points out, “SASPA mirrors the PDVA in certain respects, and

diverges from it in others.” Ante at ___ (slip op. at 18). FROs under the

PDVA and FPOs under SASPA (1) protect victims against prescribed predicate

acts; (2) require alleged victims to establish by a preponderance of the

evidence the occurrence of one or more predicate acts; and (3) require the FRO

or FPO judge to “consider” certain “factors.” However, other than those

general similarities, the PDVA and SASPA are incomparable.

Under the PDVA, and unlike SASPA, the Legislature “did not intend that

the commission of one of the enumerated predicate acts of domestic violence

[would] automatically mandate[] the entry of a domestic violence restraining

order.” Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006)

(emphases added). The text of SASPA is different. It states that an “[FPO]

issued pursuant to this section shall be issued only after a finding or an

admission is made that the respondent committed” a predicate act. N.J.S.A.

2C:14-16(e) (emphasis added).

Importantly, an FRO under the PDVA is aimed at providing prospective

relief against predicted future acts of harm; it is geared towards ending the

cycle of domestic violence. See N.J.S.A. 2C:25-18 (explaining that, when it

enacted the PDVA, the Legislature intended “to assure the victims of domestic

7

violence the maximum protection from abuse the law can provide”). That is

precisely why, in the context of the PDVA, FRO judges must determine

whether an FRO is “necessary to prevent further abuse.” See N.J.S.A. 2C:25-

29(b) (emphases added). Thus, to obtain an FRO under the PDVA, a victim

must not only prove that a predicate act occurred but also that an FRO is

“necessary . . . to protect the victim from an immediate danger or to prevent

further abuse.” Silver, 387 N.J. Super. at 127.

In contrast, a SASPA victim need not prove a “second prong” or “factor”

as a prerequisite to obtaining an FPO. Under SASPA, contrary to the

majority’s view, the issuance of an FPO does not require a victim to also

demonstrate, beyond proving the commission of a predicate act, that without

an FPO there exists a “possibility of future risk to the [victim’s] safety or well-

being.” Ante at ___ (slip op. at 3, 22). And SASPA definitely does not require

a victim to show that the FPO is “necessary . . . to protect the victim from an

immediate danger or to prevent further abuse.” Silver, 387 N.J. Super. at 127.

Rather, SASPA provides that an alleged victim is automatically entitled to an

FPO after establishing only that a respondent committed one or more predicate

acts. See N.J.S.A. 2C:14-16(e). Therefore, the elements of proof, the

analytical framework, and the overall structure of SASPA and the PDVA

differ, and cannot be conflated.

8

A.

Notably, an FPO under SASPA is accomplished in two different

sequential stages: first is the initial TPO stage which has a “good cause”

burden of proof, and then second is the FPO stage which has a heavier burden

of proof “by a preponderance of the evidence.” Although our focus here is on

the proofs necessary at the second stage (obtaining an FPO), I dissect each

stage not only to inform litigants and superior court judges about the

significant differences, but also to emphasize that consideration of the

“possibility of future risk to the safety or well-being of the alleged victim,”

N.J.S.A. 2C:14-16(a)(2), is to be considered to fashion additional relief in the

FPO, not as a required element of proof for an FPO.

1.

At the first stage, an alleged victim of a predicate act under SASPA must

apply for an emergency ex parte TPO. N.J.S.A. 2C:14-15. N.J.S.A. 2C:14-

15(d) provides that a TPO “shall be granted upon good cause shown and shall

remain in effect until a judge of the Superior Court issues a further order.”

(emphasis added). At this TPO stage, unlike at the FPO stage, the immediate

focus is the emergent nature prompted by the alleged predicate act and the

need to protect the victim pending a final hearing. See N.J.S.A. 2C:14-15(a).

9

And unlike in the context of an FPO, there are two different grounds that a

superior court judge can rely on to issue a TPO.

The first available ground on which to grant a TPO is discretionary. See

N.J.S.A. 2C:14-15(a). N.J.S.A. 2C:14-15(a) provides that

[a] judge of the Superior Court may enter an emergency

ex parte order when necessary to protect the safety and

well-being of an alleged victim on whose behalf the

relief is sought. The court may grant any relief

necessary to protect the safety and well-being of an

alleged victim.

[(emphases added).]

Under that ground, a judge may issue a TPO and “grant any relief necessary to

protect the safety and well-being of an alleged victim.” Ibid.

In contrast, the second available ground to grant a TPO is mandatory.

See N.J.S.A. 2C:14-15(b). N.J.S.A. 2C:14-15(b) provides that

[t]he court shall, upon consideration of the application,

order emergency ex parte relief in the nature of a [TPO]

if the court determines that the applicant is a victim of

nonconsensual sexual contact, sexual penetration, or

lewdness, or any attempt at such conduct, and qualifies

for such relief pursuant to [N.J.S.A. 2C:14-14].

[(emphases added).]

Under that ground, a judge must issue a TPO if that judge determines that the

applicant is indeed a victim of a predicate act under SASPA.

10

After deciding that a TPO is warranted, the judge may turn to N.J.S.A.

2C:14-15(e) which sets forth a non-exhaustive list of initial available

emergency protections that a TPO judge may impose, pending a final hearing,

to protect the safety and well-being of the alleged victim.

After an emergency ex parte TPO has been issued on either of the two

abovementioned grounds, N.J.S.A. 2C:14-15(a) or (b), and after the TPO judge

has fashioned any appropriate temporary emergency relief pending an FPO

hearing, stage two quickly occurs. An FPO hearing then “shall be held in the

Superior Court within 10 days of the filing of” a TPO application. N.J.S.A.

2C:14-16(a).

2.

At the second stage, i.e., the FPO stage, an alleged victim must prove by

a preponderance of the evidence (compared to the TPO stage’s easier “good

cause” standard) the “allegations made in the application for a protective

order.” N.J.S.A. 2C:14-16(a). Applications for protective orders pertain to

facts supporting the victim’s allegation that a respondent committed one of the

predicate acts under SASPA. See N.J.S.A. 2C:14-14(a)(1) (defining the

predicate acts).

In general, as in all bench trials, an FPO judge will consider a multitude

of factors when conducting the final hearing, such as credibility of the

11

witnesses, physical evidence, and so on. Without limiting an FPO judge’s

ability to weigh the relevant evidence at the final hearing, SASPA identifies

only two non-exhaustive “factors” that an FPO judge must “consider.”

N.J.S.A. 2C:14-16(a)(1) and (2) explain that

[t]he court shall consider but not be limited to the

following factors:

(1) the occurrence of one or more acts of

nonconsensual sexual contact, sexual

penetration, or lewdness, or any attempt at such

conduct, against the alleged victim; and

(2) the possibility of future risk to the safety or

well-being of the alleged victim.

[(emphases added).]

A full reading of SASPA’s text requires an FPO judge to “consider” each factor

for different reasons: factor one deals with the predicate act and relates to the

relief that must be issued under N.J.S.A. 2C:14-16(e); factor two concerns

possible future risk to the victim’s safety or well-being and relates to N.J.S.A.

2C:14-16(f)’s permissive additional relief.

As to the first mandatory factor, N.J.S.A. 2C:14-16(a)(1) requires an

FPO judge to “consider” “the occurrence of one or more acts of nonconsensual

sexual contact, sexual penetration, or lewdness, or any attempt at such

conduct, against the alleged victim.” The parties and amici agree that an FPO

12

cannot be issued unless the judge finds, or an admission is made, that a

respondent committed at least one predicate act enumerated under SASPA.

That finding controls. In comparison to the initial TPO stage where a

TPO judge has the authority to issue a TPO on two different grounds -- one

discretionary “when necessary to protect the safety and well-being of an

alleged victim,” N.J.S.A. 2C:14-15(a), and one mandatory when “the court

determines that the applicant is a victim” of a predicate act, N.J.S.A. 2C:14-

15(b) -- the Legislature emphasized that an FPO judge shall rely on only one

ground at the final hearing. See N.J.S.A. 2C:14-16(e). N.J.S.A. 2C:14-16(e)

provides that an FPO

shall be issued only after a finding or an admission is

made that the respondent committed [a predicate] act of

nonconsensual sexual contact, sexual penetration, or

lewdness, or any attempt at such conduct, against the

alleged victim.

[(emphases added).]

And unlike what is required to obtain an FRO under the PDVA -- that both a

predicate act occurred and the FRO is necessary to prevent further abuse --

once an FPO judge in a SASPA case finds that a respondent committed one of

the predicate acts, or there is such an admission, N.J.S.A. 2C:14-16(e) requires

that the FPO “shall be issued” and shall automatically:

(1) prohibit the respondent from having contact with

the victim; and

13

(2) prohibit the respondent from committing any future

act of nonconsensual sexual contact, sexual

penetration, or lewdness, or any attempt at such

conduct, against the victim.

No speculation is required about what may or may not happen in the future.

The FPO must be issued.

As to the second factor, N.J.S.A. 2C:14-16(a)(2) requires that an FPO

judge also “consider” “the possibility of future risk to the safety or well-being

of the alleged victim.” SASPA does not define the words “consider,”

“possibility,” “future,” “risk,” “safety,” or “well-being.” I agree with the

majority that we must afford those terms their “generally accepted meaning.”

Ante at ___ (slip op. at 22) (quoting N.J.S.A. 1:1-1). To “consider” means to

“think carefully about (something), typically before making a decision[;] . . .

[to] take (something) into account when making an assessment or judgment.”

New Oxford American Dictionary 370 (3d ed. 2010). Under N.J.S.A. 2C:14-

16(e), an FPO “shall be issued only after a finding or an admission is made

that the respondent committed” a predicate act. If the Legislature intended that

an FPO be issued only after the FPO judge finds that a predicate act occurred

plus an additional finding that there exists a “possibility of future risk to the

[victim’s] safety or well-being,” it would have said so. See DiProspero, 183

N.J. at 492 (“We cannot ‘write in an additional qualification which the

14

Legislature pointedly omitted in drafting its own enactment . . . .’” (quoting

Craster v. Bd. of Comm’rs of Newark, 9 N.J. 225, 230 (1952))). No such

language is included in SASPA.

B.

Why then did the Legislature require FPO judges to, among other

“factors,” “consider” the “possibility of future risk to the safety or well-being

of the alleged victim”? It is my view that under SASPA, an FPO judge “shall

consider” the “possibility” of such “future risk,” and any other relevant

evidence, when fashioning enhanced relief authorized by N.J.S.A. 2C:14-16(f).

My view is supported by the text of SASPA, the definition of “consider,” and

how the Legislature used the word “consider” in the PDVA.

N.J.S.A. 2C:14-16(f) provides:

In addition to any relief provided to the victim under

[N.J.S.A. 2C:14-16(e), an FPO] issued pursuant to this

section may include, but is not limited to, the following

relief:

(1) an order prohibiting the respondent from

entering the residence, property, school, or place

of employment of the victim or the victim’s

family or household members, and requiring the

respondent to stay away from any specified place

that is named in the order and is frequented

regularly by the victim or the victim’s family or

household members;

(2) an order prohibiting the respondent from

having any contact with the victim or others,

15

including an order forbidding the respondent

from personally or through an agent initiating any

communication likely to cause annoyance or

alarm including, but not limited to, personal,

written, or telephone contact, or contact via

electronic device, with the victim or the victim’s

family members or their employers, employees,

or fellow workers; an employee or volunteer of a

sexual assault response entity that is providing

services to a victim; or others with whom

communication would be likely to cause

annoyance or alarm to the victim;

(3) an order prohibiting the respondent from

stalking or following, or threatening to harm,

stalk or follow, the victim;

(4) an order prohibiting the respondent from

committing or attempting to commit an act of

harassment, including an act of cyber-

harassment, against the victim; and

(5) any other relief that the court deems

appropriate.

[(emphases added).]

Those added protections provide more relief to the victim beyond the

automatic protection issued after a finding is made that a predicate act

occurred -- i.e., prohibiting a respondent from contacting the victim, N.J.S.A.

2C:14-16(e)(1), and from committing further prohibited acts, id. at (e)(2). An

FPO judge has broad discretion to grant additional protections based on all the

evidence introduced at the hearing, whether premised on the nature and facts

16

of the predicate act, a “future risk to [a victim’s] safety or well-being,” or any

other consideration under the facts of each case.

Reference to considering “factors” is not new when it comes to

protective and restraining orders. As I pointed out, the PDVA requires FRO

judges to “consider” “factors.” In the PDVA context, like here, consideration

of enumerated “factors” is also for different purposes.

Specifically, under the PDVA, the Legislature directed that FRO judges

“shall consider but not be limited to [six] factors.” N.J.S.A. 2C:25-29(a)(1) to

(6). 5 To obtain an FRO under the PDVA, a victim need not establish each

5

These non-exhaustive factors are:

(1) The previous history of domestic violence between

the plaintiff and defendant, including threats,

harassment and physical abuse;

(2) The existence of immediate danger to person or

property;

(3) The financial circumstances of the plaintiff and

defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the

protection of the victim’s safety; and

(6) The existence of a verifiable order of protection

from another jurisdiction.

[N.J.S.A. 2C:25-29(a)(1) to (6).]

17

numbered factor. Rather, when determining whether a victim has proven a

predicate act under the PDVA, FRO judges consider primarily two of those six

factors, see Silver, 387 N.J. Super. at 126 (explaining that the FRO judge

“must consider the evidence in light of whether there is a previous history of

domestic violence [(factor one)], and whether there exists immediate danger to

person or property [(factor two)]”). And when determining whether the “relief

[is] necessary to prevent further abuse,” N.J.S.A. 2C:25-29(b), which is an

additional element that is not expressly required under SASPA, FRO judges

consider all six factors, see Silver, 387 N.J. Super. at 127.

Thus, as illustrated by the definition of “consider,” and its use in both

the PDVA and SASPA, the language in SASPA that “[t]he court shall consider

but not be limited to the following factors,” on its own, does not expressly set

forth the grounds for issuance of an FPO. Rather, it merely sets forth

circumstances the judge should “think carefully about” or “take . . . into

account” when fashioning additional relief in the order. See New Oxford

American Dictionary at 370.

III.

Although the text is clear, the legislative history and New Jersey’s

existing public policy also support my reading of SASPA. In enacting SASPA,

the Legislature focused on victims of nonconsensual sexual predicate acts.

18

New Jersey has increased protections for sexual assault victims. See State v.

Chambers, 252 N.J. 561, 583-86 (2023) (“Our courts have recognized that, in

sexual assault cases, ‘the wellbeing of . . . victims demands heightened

protection’ because there is a ‘likelihood of emotional trauma and mental

distress.’” (omission in original) (quoting State v. D.R.H., 127 N.J. 249, 259

(1992))). SASPA further provides for that enhanced protection.

In line with those goals, SASPA “help[s] better respond” to sexual

assault victims. A. Judiciary Comm. Meeting on Sexual Assault Survivor

Protection Act of 2015, A. 4078 (Jan. 15, 2015) (statement of Valerie Vainieri

Huttle), https://njleg.state.nj.us/archived-media/2014/AJU-meeting-list/media-

player?committee=AJU&agendaDate= 2015-01-15-

10:00:00&agendaType=M&av=A. According to Assemblywoman Valerie

Huttle, SASPA’s lead sponsor, “a critical issue [is] helping victims become

survivors and helping them heal” and therefore SASPA is designed to help

accomplish those goals and ensure that survivors feel safe. Ibid. Accordingly,

SASPA imposes a “minimal burden and confusion for the courts.” Ibid. Given

this legislative history, it is of no surprise that to obtain an FPO, a victim need

only prove that a predicate act occurred, not that at some time in the future the

victim might experience the “possibility of future risk to [their] safety or well-

being.” Any other reading -- even if the standard is “permissive and easily

19

satisfied,” ante at ___ (slip op. at 3) -- would contravene the Legislature’s

intent and impose more “burden[s]” and “confusion” on the courts and

litigants.

Moreover, the legislative history surrounding VASPA emphasizes

VASPA’s focus on protecting victims and ensuring straightforward access to

legal remedies. Assemblywoman Michele Matsikoudis commented about the

2023 amendments that “[t]he law is now on the side of victims seeking

protection through the courts. Victims who have been targeted by strangers,

neighbors and acquaintances will finally be able to experience the peace of

mind that protective orders provide.” Office of the Governor, Press Release:

Governor Murphy Signs Legislation Expanding Access to Temporary

Protective Orders (July 24, 2023) (emphasis added). Elaborating on the

benefits of VASPA’s protections, Senator Linda Greenstein stated that “[t]his

law will empower victims to take legal action and obtain a [protective] order,

providing them with a crucial tool to proactively protect themselves before a

stalking situation escalates.” Ibid.

Consistent with SASPA’s and VASPA’s purpose and New Jersey’s public

policy to protect victims of sexual violence, academic research also supports

the need to provide accessible legal remedies in the form of protective orders

for victims. Studies show that victims of sexual assault perceive orders of

20

protection as effective and crucial to their safety. See Jane K. Stoever,

Enjoining Abuse: The Case for Indefinite Domestic Violence Protection

Orders, 67 Vand. L. Rev. 1015, 1066 (2014). For instance, “obtaining a

protection order is deeply empowering because it entails asserting one’s own

needs, standing up to the abuser, and enlisting a potent institutional ally.”

Sally F. Goldfarb, Reconceiving Civil Protection Orders for Domestic

Violence: Can Law Help End the Abuse Without Ending the Relationship?, 29

Cardozo L. Rev. 1487, 1515 (2008). “Moreover, victims often report that civil

protection orders were instrumental in helping them recover and improve their

overall feelings of well-being after an attack.” Shawn E. Fields, Debunking

the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection

Orders, 2017 Wis. L. Rev. 429, 460 (2017) (quoting Hayley Jodoin, Closing

the Loophole in Massachusetts Protection Order Legislation to Provide Greater

Security for Victims of Sexual Assault: Has Massachusetts General Laws

Chapter 258E Closed It Enough?, 17 Suffolk J. Trial & App. Advoc. 102, 111

(2012)).

IV.

Application of those legal principles to the facts of this case is

straightforward, although with one caveat: unlike a typical SASPA case, in

which an FPO judge conducts one hearing and the record on appeal pertains to

21

that hearing, here the victim testified at two FPO hearings before different

FPO judges over three years apart from each other. The predicate act occurred

on June 26 into June 27, 2018. On July 2, 2018, the victim filed for and

received a TPO under SASPA. Thereafter, as previously explained, the first

FPO judge conducted a final hearing on August 2, 2018. The second FPO

judge, i.e., the remand judge, conducted a second final hearing on November

8, 2021.

At the first FPO hearing, the victim did not testify about the “possibility

of future risk to [her] safety or well-being,” besides her one statement

explaining that she filed for an ex parte TPO because she “[did not] feel safe

without it.” The victim was not questioned about “future risk” nor did she

produce evidence that would satisfy the test proffered by the majority today --

“whether there is a chance that a [victim] may be exposed to physical danger,

risk, or injury, or may be exposed to something emotionally unwelcome or

unpleasant that could make [her] feel uncomfortable, unhealthy, or unhappy.”

Ante at ___ (slip op. at 23). And based on the testimony that was provided, the

first FPO judge found it was clear that respondent did not call, text, contact, or

interact with the victim after the predicate act occurred. Thus, at the first FPO

hearing, there was no showing that the victim may, in the future, be “exposed

to physical danger, risk, or injury,” or “exposed to something emotionally

22

unwelcome or unpleasant that could make [her] feel uncomfortable, unhealthy,

or unhappy.” See ibid.

As this Court stated in C.R. I, the “factual findings [at the first FPO

hearing] appear to counter [the victim’s] establishing [the second factor] of

SASPA.” 248 N.J. at 448. There were no facts identified by the judge to find

that there existed a “possibility of future risk to the safety or well-being of the

alleged victim”; instead, the facts appeared contrary to such a finding. Ibid. If

the victim had presented evidence to show that there is a “possibility of future

risk to [her] safety or well-being,” there would have been no reason to remand

the case on this issue. 6 Instead, in its remand instructions, the Court instructed

the trial court to “make additional findings of fact that support a determination

6

Similarly, even if the first FPO judge did not make a finding on factor two of

SASPA, had the record contained evidence that factor two was satisfied, the

C.R. I. Court would not have needed to remand for additional findings of fact

on this factor. See A.M.C. v. P.B., 447 N.J. Super. 402, 418, 422 (App. Div.

2016) (reversing without a remand the trial judge’s decision not to issue an

FRO under the PDVA because the record supported issuance of the FRO); J.D.

v. A.M.W., 475 N.J. Super. 306, 315 (App. Div. 2023) (reversing the decision

not to issue an FRO under the PDVA and remanding for entry of the FRO

because the record contained “ample evidence” that the plaintiff needed the

FRO to prevent further abuse); cf. J.S. v. D.S., 448 N.J. Super. 17, 23-24 (App.

Div. 2016) (vacating an FRO under the PDVA and remanding the matter for a

determination of whether the predicate act of domestic violence occurred

because courts “have an obligation to ensure the FRO was legitimately

entered” and nothing in the record supported keeping the FRO in effect).

Although these are PDVA cases, the principle that an appellate court can

reverse without remanding and issue an FRO if supported by credible evidence

in the record, applies in equal force to SASPA FPOs.

23

either that the [second factor] has been satisfied, or not, in deciding whether to

issue the [FPO].” C.R. I, 248 N.J. at 448.

The first FPO judge in fact appropriately entered the FPO after finding

the victim “ha[d] been subjected to nonconsensual sexual activity.” Adhering

to N.J.S.A. 2C:14-16(e)(1) and (2), the judge prohibited respondent from

having “contact with the victim,” and from committing further acts of

“nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt

at such conduct, against the victim.” It was error, however, for the first FPO

judge to find there existed a “possibility of future risk to the [victim’s] safety

or well-being” only because respondent has “been subjected to legal fees and

may now harbor a grudge against [the victim] which would probably not have

occurred but for these proceedings.” Exercising discretion under N.J.S.A.

2C:14-16(f)(3) and (4), he prohibited respondent from “stalk[ing],

follow[ing][,] or harass[ing] the victim.” 7 But as the Court stated in C.R. I,

“[i]t cannot be that simply filing for a protective order is sufficient” to satisfy

N.J.S.A. 2C:14-16(a)(2), the “possibility of future risk to the safety or well-

being of the alleged victim.” 248 N.J. at 448. A finding based on N.J.S.A.

7

The record is unclear about whether the first FPO judge included further

protection in accordance with N.J.S.A. 2C:14-16(f)(1) (barring respondent

from specific locations) and N.J.S.A. 2C:14-16(f)(2) (prohibiting respondent

from specific types of contact).

24

2C:14-16(a)(2) must be grounded in credible evidence since it allows a judge

to enter further protections in the FPO.

Thus, I would hold that at the FPO stage, the “possibility of future risk

to the safety or well-being of [an] alleged victim” exists if (1) in the future, (2)

the alleged victim may face either (a) a risk to safety -- physical injury, loss, or

damage, or (b) a risk to their well-being -- injury to the state of being happy or

healthy. And that finding then impacts the judge’s discretion to impose

additional relief in the FPO under N.J.S.A. 2C:14-16(f).

The victim here had the rare opportunity to testify again at a second FPO

hearing. Instead of having to speculate about the “possibility of future risk to

[her] safety or well-being,” she testified about how the incident affected her

three years and three months later, an opportunity -- as the majority correctly

points out -- that is typically unavailable for SASPA victims. Ante at ___ (slip

op. at 32-33). Her testimony the second time around crystalized the impact of

the incident.

Looking back on the occurrence of the predicate act, the victim

explained how she: (1) will always be “traumatized” by what happened; (2)

has “terrible intimacy issues” and “can’t date”; and (3) has trouble sleeping

and making friends due to her trust issues. As to her “well-being” she

elaborated:

25

I am affected by what happened every day. I’ve seen

multiple therapists and I lay in bed at night[,] and I can’t

sleep because I still feel like I’m in the garage

sometimes. . . .

I have a hard time making friends because I don’t trust

my friends anymore. . . . it destroyed me, honestly.

Like, I’ve lost my sense of self-worth. I lost

everything. I feel like -- some days, I feel like I’ll never

not be in that garage, honestly. Like, I wonder how I

can ever not be traumatized by this and I don’t think

that’s a possibility.

[(emphases added).]

In response to being asked, “do you fear for your safety and the possibility of

harm from [respondent],” the victim explained:

I do. I really, I do. I think the only reason I have any

sort of peace of mind is because I know I have this

temporary right now and I’m so terrified that if I didn’t

have it, he would be angry that I’ve spent three years

just asking for this.

Just asking for a sense of security. I think he would

definitely harass me for challenging it. I feel like every

time -- I can’t even begin to explain the, like, terror that

I feel every day when I am unsure of my surroundings.

I can’t even -- I have a hard time even going shopping

by myself because what if something happens? How

will I defend myself? And if there’s no protective

order, then he has no consequences. . . .

He could harass me over the Internet. He could come

to my residence, come to my work, find me anywhere.

[(emphases added).]

26

As opposed to speculating about the possible risk to her safety or well-being,

the victim’s testimony amplified, albeit more than three-years later, the actual

risk to her “safety” or “well-being.” Thus, the victim’s inability to provide

evidence at the first FPO hearing, coupled with the additional testimony she

provided at the second FPO hearing, underscores the difficulty of proving the

“possibility of future risk to [a victim’s] safety or well-being” by a

preponderance of the evidence ten days after application for an emergency ex

parte TPO. Contrary to the majority’s holding, having the benefit of hindsight

in this case illustrates how N.J.S.A. 2C:14-16(a)(2)’s standard will not always

be “easily satisfied.” Ante at ___ (slip op. at 3, 22). 8

8

It is unsurprising that, in cases where a TPO was filed shortly after a

predicate act occurs, a victim may lack proof showing the “possibility of future

risk to the safety or well-being of the alleged victim.” It is common for

victims of sexual violence to experience post-traumatic stress disorder (PTSD),

depression, anxiety, increased suicide risk, disordered eating, substance abuse,

difficulty functioning, and other psychological conditions. See Amy C.

Graham et al., Sexual Assault, Campus Resource Use, and Psychological

Distress in Undergraduate Women, 36 J. Interpersonal Violence, 10361,

10362-63 (2021) (generally discussing the psychological effects of sexual

assault on women). Moreover, women who were drinking alcohol prior to a

sexual assault -- like the victim here -- are more likely to experience

psychological distress. Id. at 10363; see also Karen Rothman et al., Sexual

Assault Among Women in College: Immediate and Long-Term Associations

with Mental Health, Psychological Functioning, and Romantic Relationships,

36 J. Interpersonal Violence, 9600, 9602, 9615 (2021) (emphasizing that

sexual assault is “consistently linked” with PTSD “within days” of the event,

unreliable memory, fear and anxiety, suicidality, and depression); Emily R.

27

Nevertheless, and like the first FPO judge, the remand judge also found

that respondent committed one or more predicate acts. The remand judge

recognized SASPA’s lenient standard and requirement to “consider” the

“possibility of future risk to the [victim’s] safety or well-being.” Relying on

this new testimony, the remand judge stated:

the [v]ictim testified that she has seen several therapists

to deal with the trauma that she has endured. She has

ongoing difficulty sleeping. She has intimacy issues.

The long-term effects are real and traumatizing to her.

It is clear that without the [FPO], any efforts she has

made in therapy could be eviscerated. Her testimony

that the only peace of mind she has is the security that

this order has provided to her, with the attendant

consequences to [respondent] should he violate the

[FPO], is legitimate and truthful. There is a significant

risk to her psychological well-being should this order

not remain in effect.

Thus, in line with my reading of SASPA, there is sufficient credible evidence

to support the finding that there is a risk to the victim’s “safety” and “well-

being,” which supports the continued added protections afforded by N.J.S.A.

2C:14-16(f).

Dworkin et al., Associations Between Sexual Assault and Suicidal Thoughts

and Behavior: A Meta-Analysis, 14 Psych. Trauma: Theory, Rsch., Prac., &

Pol’y, 1208, 1211 (2020) (same). Such psychological consequences impact a

victim’s ability to present evidence by a preponderance of the evidence in

support of an FPO.

28

V.

In sum, it is my view that to obtain an FPO, SASPA does not require a

victim to also demonstrate, beyond proving the commission of a predicate act,

that without an FPO there exists a “possibility of future risk to the [victim’s]

safety or well-being.” The victim here established by a preponderance of the

evidence, at both FPO hearings, that respondent committed one or more

predicate acts. The judges then correctly found that the victim is entitled to an

FPO prohibiting the respondent from contacting the victim and committing

further predicate acts under N.J.S.A. 2C:14-16(e). The “possibility” of what

might or might not happen in the future is simply one factor among many

others that the judge “shall consider” when fashioning additional relief in the

FPO; it is not an element of proof. That is exactly why the remand judge, after

hearing more testimony, allowed the additional restrictions under N.J.S.A.

2C:14-16(f)(3) and (4) to remain in effect.

Accordingly, I would uphold the FPO and those referenced additional

restrictions.

29