C.R. v. M.T.

• Decision Date: 13 November 2019
• Docket Number: DOCKET NO. A-0139-18T4
• Citation: 221 A.3d 154,461 N.J.Super. 341
• Parties: C.R., Plaintiff-Respondent, v. M.T., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

461 N.J.Super. 341

221 A.3d 154

C.R., Plaintiff-Respondent,

v.M.T., Defendant-Appellant.

DOCKET NO. A-0139-18T4

Superior Court of New Jersey, Appellate Division.

Argued October 3, 2019

Decided November 13, 2019

Nancy Kennedy Brent argued the cause for appellant (Kennedy Brent Law Firm, attorneys; Nancy Kennedy Brent, on the briefs).

Andrew Vazquez argued the cause for respondent (South Jersey Legal Services, attorneys; Andrew Vazquez and Kenneth Mark Goldman, Atlantic City, on the brief).

Before Judges Fisher, Gilson and Rose.

The opinion of the court was delivered by

FISHER, P.J.A.D.

Plaintiff C.R. commenced this action under the Sexual Assault Survivor Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21, seeking to restrain defendant M.T. from having any communications or contact with her. SASPA offers an avenue for the issuance of restraining orders in favor of sexual abuse victims who cannot obtain relief under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. See R.L.U. v. J.P., 457 N.J. Super. 129, 135, 198 A.3d 304 (App. Div. 2018). Testimony adduced at a one-day trial revealed the parties did not dispute that sexual contact occurred. Whether plaintiff consented – or was able to consent – to the sexual encounter was and remains the central issue.

The first prong of SASPA requires that the alleged victim demonstrate – by a preponderance of the evidence, N.J.S.A. 2C:14-16(a) – that a sexual encounter was nonconsensual. Lack of consent may be demonstrated by proof of a temporary mental incapacity, N.J.S.A. 2C:14-2(a)(7), which may be generated by the victim's intoxication, N.J.S.A. 2C:14-1(i). The trial judge found plaintiff was so intoxicated that she was unable to consent or object. Having carefully considered the issues raised in this appeal, we conclude that:

• SASPA draws no distinction between voluntary and involuntary intoxication when determining whether an alleged victim lacked the capacity to consent.

• to prove a lack of consent due to intoxication, an alleged victim must prove a "prostration" of "faculties."

• a remand is necessary here because the judge did not apply the prostration of faculties standard when finding plaintiff was incapable of consenting.

Because it is necessary to remand for further findings on the first prong, we choose not to reach defendant's argument about SASPA's second prong, which permits issuance of a restraining order because 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).

SASPA's first prong requires that an alleged victim prove, by a preponderance of the evidence, "the occurrence of one or more acts of nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt at such conduct." N.J.S.A. 2C:14-16(a)(1). We start by observing that plaintiff's claim and defendant's response do not focus on whether sexual contact or sexual penetration did or did not occur. The ultimate fact in dispute concerned whether plaintiff consented to the sexual relations that occurred. This dispute posed separate factual questions: did plaintiff actually express or otherwise convey her consent to engage in sexual relations and, if not, was she intoxicated to a point where she was incapable of consenting.

In reviewing the evidence and the trial judge's findings, we note that certain facts were undisputed. On the evening in question, plaintiff and a friend, S.S. (Sylvia, a fictitious name), consumed alcohol while visiting two bars and a friend's house. At the first stop, a bartender eventually refused to serve Sylvia, so the two young women were driven by a friend to another bar. They also called defendant – Sylvia's cousin – who worked at this last bar; they asked that he join them. Defendant declined. The women then continued to drink at the bar until Sylvia was "cut-off." The bartender texted defendant to come and pick up his cousin and plaintiff. Defendant, who lived nearby, soon arrived and told Sylvia and plaintiff they were leaving. When plaintiff protested – because she had not finished her drink – defendant told her to "chug it"; she complied and the three left.

Rather than take the women to Sylvia's residence as they requested, defendant took them to his home. There, defendant went to bed but later joined the young women in their continued drinking. Eventually, defendant convinced Sylvia to go to bed in the guest room, and plaintiff laid down on a couch in another room. It is here the parties' stories diverged.

Defendant claimed plaintiff led him into the garage; plaintiff claimed he carried her there. Plaintiff testified that defendant made sexual demands; plaintiff asserted, in the judge's words, that "she was scared [because] defendant is physically imposing," and she "believed she had no alternative but to comply, so she did."¹ Plaintiff also testified that prior to sexual penetration, she said, as the judge recounted, "words to the effect of ‘I do not want this’ "; in the judge's words, if plaintiff's version were to be credited, plaintiff then "revoked whatever consent there could have been" but "defendant did not stop."

Defendant countered plaintiff's claim that she did not consent or was otherwise unwilling. He testified he had gone to bed but was interrupted when plaintiff asked for a blanket. He followed her to the couch where plaintiff was planning on sleeping, and they began to "fool around." Defendant testified that, after a while, plaintiff suggested they go to the garage to avoid the possibility of Sylvia walking in on them. Defendant then described in his testimony that they engaged in consensual sexual relations in the garage.

If, by a preponderance of the evidence, the judge found plaintiff either verbally or impliedly consented only because she was in fear, or initially consented but then withdrew her consent, the predicate act necessary to establish SASPA's first prong would have been proven. Permission to engage in sexual relations must be freely given and that willingness may be inferred from acts or statements reasonably viewed in light of the circumstances. In re M.T.S., 129 N.J. 422, 444, 609 A.2d 1266 (1992). Plaintiff's version included her claim she only assented out of fear or in the face of a compelling force,² and that, at some point in the encounter, she expressed her desire that defendant stop. This would be sufficient under SASPA's first prong. But the judge found the parties' competing versions to be "equally plausible"; in short, he found plaintiff failed to prove her version was more likely true than defendant's. Globe Motor Co. v. Igdalev, 225 N.J. 469, 482, 139 A.3d 57 (2016). The trial judge's view of the weight of the evidence commands our deference. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84, 323 A.2d 495 (1974).

Because the judge concluded plaintiff failed to tip the evidential scale in her favor that she refused to engage in sexual conduct, that she consented out of fear, or that she revoked consent during the encounter, the remaining factual dispute about consent turned on whether there was a ground upon which it could be found plaintiff was incapable of consenting.

In ascertaining what the Legislature meant when requiring that alleged victims prove the first prong – an act of "nonconsensual" sexual contact or penetration, N.J.S.A. 2C:14-16(a)(1) – we look to N.J.S.A. 2C:14-2(a)(7), which defines a sexual assault victim as "one whom the actor knew or should have known was" among other things "mentally incapacitated." The phrase "mentally incapacitated" is defined as

that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent ....

[ N.J.S.A. 2C:14-1(i) (emphasis added).]

This definition of "mentally incapacitated" – when considered in its context – gives some pause because that portion of N.J.S.A. 2C:14-1(i) we underscored above might suggest a requirement that the alleged victim prove her involuntary intoxication, that is, that she ingested intoxicants "administered to [her] without [her] prior knowledge or consent." Since the evidence demonstrated only that plaintiff voluntarily drank on the evening in question, we must determine whether the underscored phrase modifies "intoxicant."

In answering any question about a statute's intent, we look for the plain meaning of the words and phrases the Legislature utilized. State v. Olivero, 221 N.J. 632, 639, 115 A.3d 1270 (2015) ; McCann v. Clerk of City of Jersey City, 167 N.J. 311, 320, 771 A.2d 1123 (2001).³ Because the Legislature listed the substances – "narcotic, anesthetic, intoxicant, or other substance" – that could generate mental incapacity and followed that list with a qualifying phrase – "administered to that person without his prior knowledge or consent" – we necessarily engage the doctrine of the last antecedent, which holds that, absent an apparent contrary intention, "a qualifying phrase within a statute refers to the last antecedent phrase." State v. Gelman, 195 N.J. 475, 484, 950 A.2d 879 (2008) (citing 2A Sutherland Statutory Construction § 47.33, at 487-88 (7th ed. 2007)). This doctrine requires our conclusion that the qualifying phrase applies only to "other substance" and not "intoxicant." To convey some other meaning, the Legislature would have had to insert a comma after "other substance," a mere punctuation mark to be sure, but one that would grammatically call for a different result.

Our emphasis on the absent comma may sound like a hyper-technical way to construe statutes. It isn't. Our courts have applied this tenet time and again in construing legislation. See New Jersey Bank v. Palladino, 77 N.J. 33, 45, 389 A.2d 454 (1978) (holding, in a similar circumstance, that if "the Legislature had intended otherwise, it would have inserted a comma after" the last prior...