Under the New Jersey Domestic Violence Act, when the police are called to the scene of a DV disturbance and see evidence of a criminal act committed by the ‘abuser’, the are required under the law to arrest that person even if the ‘victim’ says that they will not sign the complaint and does not want a Temporary Restraining Order.
There are two types of legal process in a DV case. The first involves a civil action called a restraining order which is between the two parties (for the moment we will refer to them as the ‘abuser’ (also referred to as the ‘defendant’); and, the ‘victim’ (also referred to as the ‘plaintiff’). In this civil proceeding, the victim/plaintiff can request that the case be dismissed, and with the consent of the Court it may be. The second involves a criminal action wherein a criminal complaint is filed against the ‘abuser’ as the defendant, with the plaintiff being the State of New Jersey. The ‘victim’ is still a victim, and a witness, but is not the plaintiff so they do not have the ability to dismiss the criminal case against the defendant. Even if the victim tells the prosecutor that they will not cooperate or testify, the State still can proceed and prosecute the criminal charges.
There are three main issues that a Court looks at to determine whether a civil restraining order should be made a ‘Final’ order of the Court. The first issue involves a determination of whether there was a ‘domestic relationship’ between the parties, which includes both past and present relations of boyfriend, girlfriend, sex partner, sister, mother, father, brother, or any other socially recognized type of ‘domestic’ relationship. The question is basically whether the parties were more than friends, and had some type of interaction more than being a casual acquaintance. The second issue pertains to whether there is evidence of a criminal offense that is prohibited under the DV Act. This is different than a determination that there is probable cause to charge the defendant criminally with that offense. The third issue is the most important in my mind, as it requires the Judge to determine whether an FRO is reasonably necessary to prevent future acts of domestic violence. Witness credibility is as much a factor as are the alleged ‘facts’ that the witness testifies to. If the answer to all three of these issues is YES, by a preponderance of the evidence, than the Judge issues a Final Restraining Order.
In comparison, all the police need to charge the defendant with a criminal offense for the conduct that is the basis for the restraining order, is ‘probable cause’. This low evidentiary standard requires that there be ‘reason to believe’ that a criminal offense occurred; and, ‘reason to believe’ that the defendant was involved. This burden of proof can be satisfied by any type of admissible evidence, including statements of the ‘victim’ and/or ‘defendant’; observations of the officer at the scene; and, other evidence or witness statements. Once a DV-related criminal complaint is issued, the defendant will typically be held in custody for at least several days while the Court makes inquiry of whether there is a ‘risk of re-offense’ if they were to be released. If the Court believes that there is risk of the defendant re-offending, the defendant can be held in custody for the duration of the proceedings (think 3-6-9 months). The Court will always issue a ‘no-contact’ order as part of any condition of release on the criminal complaint, barring the defendant (separate and apart from any no-contact order in the TRO) from having any contact with the victim and witnesses, and the scene of the incident.
As to the spouse saying that they will not cooperate with the State in prosecuting their husband, wife, sibling, etc.? That may be a factor, but not a controlling one, in how the State decides to deal with the criminal case.
#domesticviolence #FRO #TRO
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