N.J.’s top court strengthens consent standard in sex assault cases

By: - September 28, 2021 9:33 pm

The ruling is a “big win” for sexual assault survivors seeking civil protective orders, said one attorney on the case. (Getty Images)

For years, sexual assault victims typically were treated like criminal defendants, forced to prove their innocence, until the Me Too movement in 2017 sparked systemic reforms and conversations about consent.

Still, in a 2018 sexual assault case, a New Jersey appellate court used a legal standard that applies to criminal defendants to decide that a Gloucester County woman failed to prove she was too drunk to consent to sexual activity.

For that, the appellate judges got a resounding rebuke on Tuesday from the New Jersey Supreme Court, which ruled that judges unsure how to measure consent in sexual assault cases can only consider whether it was “freely and affirmatively given” by the alleged victim.

Attorney Mary McManus-Smith argued the case on behalf of the Legal Services of New Jersey, where she is chief counsel for family law and director of litigation. She called the ruling a “big win” for sexual assault survivors seeking civil protective orders.

“Very few situations of sexual assault currently result in criminal conviction, so having this civil protection order becomes a primary and a critical protection for people who have survived sexual violence,” McManus-Smith said. “About half of incidents of sexual violence involve alcohol, so this would apply to lots of cases.”

The ruling stems from a June 2018 encounter between a woman identified as Clara, then 21, and her friend’s cousin Martin. After the women went out for a night of drinking, Martin picked them up and took them to his home. Clara told police that Martin sexually assaulted her in his garage, even though she tried to escape and repeated “I don’t want this.” Martin contended they had consensual sex. Clara told investigators she’d had more than 10 drinks and was “heavily intoxicated.”

Clara reported the incident to police, and hospital staff found injuries on her arms, legs, and hip. The case did not result in criminal charges.

A week later, Clara applied for a protective stay-away order, under the Sexual Assault Survivor Protection Act of 2015, which allows alleged sexual assault victims to seek protection orders even if their case doesn’t result in criminal charges or conviction. The act doesn’t define consent.

A local judge granted her request, but an appeals court overturned that decision, saying Clara failed to show she was too intoxicated to consent.

Different legal standards

A landmark 1992 decision set the standard for criminal courts weighing consent, defining sexual assault as any sexual penetration done without the affirmative and freely-given permission of the victim. In 2020, the state Legislature strengthened the legal definition of consent by removing references to “physical force” in the criminal sexual assault statute.

But the appeals court in Clara’s case instead applied a legal standard called “prostration of faculties” that’s used by criminal defendants who say they were too drunk to intentionally commit a crime. The appeals court sent the case back to the trial court for “fact finding” to determine Clara’s level of intoxication.

In 2021, we cannot and should not go back in time to a period when it was the norm to shame, blame, and prosecute victims.

– New Jersey Supreme Court Justice Fabiana Pierre-Louis

In Tuesday’s ruling, the Supreme Court reversed the appellate decision, saying the appeals court was wrong to take a standard criminal defendants use to evade culpability and apply it to sexual assault victims seeking a protective order.

“A holding that alleged victims of sexual assault seeking a protective order should be held to the same standard as criminal defendants seeking to assert a defense would, quite frankly, set our law back decades to a time when alleged victims were the ones essentially put on trial,” Justice Fabiana Pierre-Louis wrote in the unanimous ruling. “In 2021, we cannot and should not go back in time to a period when it was the norm to shame, blame, and prosecute victims.”


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Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.