NJ Supreme Court Sets Consent Standard for Intoxicated Victim Under SASPA

In C.R. v. M.T. (A-58-19/083760) (Decided September 28, 2021), the Supreme Court of New Jersey addressed what standard should apply in determining whether an alleged sexual assault victim was too intoxicated to give consent under the Sexual Assault Survivor Protection Act of 2015 (SASPA). It concluded that the standard should be no different than the standard for consent for an alleged victim in a criminal sexual assault case — a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity.

Facts of C.R. v. M.T.

In June 2018, plaintiff “Clara” and defendant “Martin” engaged in sexual activity after a night of drinking. Plaintiff alleges she was too intoxicated to give consent, but defendant claims that the entire encounter was consensual. Plaintiff filed for a temporary restraining order pursuant to SASPA.

SASPA offers relief in the form of a civil protective order to alleged victims of nonconsensual sexual contact. A person may apply for, and the court may issue, a protective order under SASPA “regardless of whether criminal charges based on the incident were filed and regardless of the disposition of any such charges.” The statute requires consideration of at least two factors, commonly referred to as the two “prongs” of SASPA: “(1) the occurrence of one or more acts of nonconsensual sexual contact . . . against the alleged victim; and (2) the possibility of future risk to the safety or well-being of the alleged victim.”

After conducting a hearing, the trial court found both parties’ accounts to be “equally plausible.” Applying the preponderance of the evidence standard, the court concluded that Clara’s extreme voluntary intoxication rendered her “temporarily incapable of understanding the nature of her conduct” and that she had therefore been subjected to nonconsensual sexual contact within the meaning of SASPA’s first prong. Turning to the second SASPA prong, the judge noted the lack of evidence that Martin sought to contact Clara after their encounter. Nonetheless, recognizing that SASPA was intended to provide protection to victims of nonconsensual sexual contact, as well as the possibility that Martin “may now harbor a grudge against [Clara] which would probably not have occurred but for these proceedings,” the court concluded that “it is more likely than not that a final restraining order is appropriate.”

The Appellate Division reversed and remanded. It held that the proper standard to assess whether plaintiff was incapable of consent due to intoxication was the prostration of faculties standard, a standard utilized only when criminal defendants assert intoxication as a defense to negate the requisite mens rea to commit a crime.

NJ Supreme Court’s Decision in C.R. v. M.T.

The Supreme Court of New Jersey reversed. “We hold that the appropriate standard to determine whether sexual activity was consensual under SASPA is not the prostration of faculties standard, which focuses on the mental state of the defendant, but rather the standard articulated in a criminal case almost three decades ago in State in Interest of M.T.S., 129 N.J. 422 (1992), which is applied from the perspective of the alleged victim.

As the court went on to explain, the standard set forth in M.T.S. requires a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity. The court further clarified in M.T.S. that “permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances.”

According to the New Jersey Supreme Court, the standard for consent for an alleged victim in a SASPA case should be no different than the standard for consent for an alleged victim in a criminal sexual assault case. “Given the history of sexual assault in the law, as painstakingly detailed in M.T.S., 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,” the court wrote. “Applying the prostration of faculties standard in determining whether sexual activity was consensual is simply inconsistent with the standard set forth in M.T.S.”

In further support of its decision, the New Jersey Supreme Court emphasized that the prostration of faculties standard is and has only ever been applied to alleged criminals seeking to evade culpability. “That concept has no place in the Court’s jurisprudence as applied to alleged victims of sexual assault seeking a protective order,” the court wrote.

The New Jersey Supreme Court remanded the case to the trial court for assessment under the standard articulated in M.T.S. It specifically directed the trial court to expand upon its abbreviated discussion of prong two and make additional findings of fact that support a determination that the prong has been satisfied, or not, in deciding whether to issue the final restraining order.

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