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- by Susan |
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The October 18 unpublished appellate opinion in State of New Jersey v. D.P. highlights the serious consequences of violating a domestic violence restraining order. In this case, the defendant D.P. was unsuccessful in his appeal of a sentence of 60 days in the county jail for three separate violations of a final restraining order (FRO).
In New Jersey, violation of a domestic restraining order is the disorderly persons crime of contempt i.e. a defiance of the authority of the court. N.J.S.A. 2C:29-9(b). It is criminal conduct that is prosecuted by the County Prosecutor and heard by a Family Part judge in NJ Superior Court.
Since it is a criminal offense, it has to be proven beyond a reasonable doubt that there was knowing violation of a restraining order of a NJ court or of any court in another state where there is a similar prevention of domestic violence statute.
It is important to note that what matters is whether there was a temporary or final restraining order in place at the time the alleged offense was committed. The fact that a TRO or FRO may subsequently be dismissed, withdrawn or vacated is no defense to a contempt charge. See State v. Sanders, 327 N.J. Super. 385 (App. Div. 2000).
Violations can occur for behavior that is not itself criminal e.g. making a telephone call or texting the domestic violence victim. ? A conviction for domestic violence contempt can result in upto 6 months in the county jail, although probation with no jail time is typical for most first offenders unless there are aggravating circumstances. ? However, for a second conviction or guilty plea, there is a mandatory minimum 30 days in jail! ? N.J.S.A. 2C:25-30.
Going back to the case of D.P., he knew there was an FRO in place, but because the victim contacted him and invited him to see her, and have consensual sex, he did not believe she would charge him with violating it. ? The fact that the victim may have initiated the contact or consented to it, is no defense, only a mitigating factor. ? As the trial court judge noted, “the correct course of action would have been to decline to take [T.L.’s] calls when she called him.”
Because he had a prior conviction for violation of an FRO, D.P. was subject to a minimum of 30 days in jail on each count when he pled guilty to three further violations of the FRO. He subsequently accepted a plea bargain which resulted in a sentence of 60 days in the county jail to run concurrently for each of the three counts; this was upheld on appeal.
Given the criminal conviction and possibility of jail time, domestic violence restraining orders should be taken seriously. All those charged with domestic violence contempt are entitled to representation by an attorney if they are indigent i.e. cannot afford one.
The attorneys who provide representation are members of the bar who are required to do so in order to comply with their pro-bono obligations under Madden v. Delran. They are not public defenders and most are not criminal or family lawyers, indeed they could be corporate lawyers or in-house counsel with no actual court or trial experience. ? To help pro-bono counsel who are assigned a domestic violence contempt case, the NJ Courts have prepared an excellent manual, “Defending a Domestic Violence Contempt Case.” If you are involved with a DV contempt case, this is well worth reading.