C.R. VS. M.T. (FV-08-0021-19, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0139-18T4
C.R.,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
November 13, 2019
v. APPELLATE DIVISION
M.T.,
Defendant-Appellant.
____________________________
Argued October 3, 2019 – Decided November 13, 2019
Before Judges Fisher, Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-0021-19.
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, on the brief).
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 (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.
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• 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.
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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;
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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 jud ge'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
1
The judge observed in his findings that "defendant is a physically large and
seemingly powerful young man and that the plaintiff is slight of build."
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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 (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 (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 (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.
2
It has long been acknowledged that the concept that a victim must resist – and
"to the uttermost" – is obsolete; a victim who submits "to a compelling force, or
as a result of being put in fear" has not consented. State v. Harris, 70 N.J. Super.
9, 16-17 (App. Div. 1961).
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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
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N.J. 632, 639 (2015); McCann v. Clerk of City of Jersey City, 167 N.J. 311, 320
(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 (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
(1978) (holding, in a similar circumstance, that if "the Legislature had intended
3
We would add there is nothing in the statute's legislative history to illumina te
the Legislature's intent on this precise point.
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otherwise, it would have inserted a comma after" the last prior antecedent);
Morella v. Grand Union/New Jersey Self-Insurers Guar. Ass'n, 391 N.J. Super.
231, 240-41 (App. Div. 2007) (holding that "the use of a 'comma' to separate a
modifier from an antecedent phrase indicates an intent to apply the modifier to
all previous antecedent phrases"); Gudgeon v. Cty. of Ocean, 135 N.J. Super.
13, 17 (App. Div. 1975) (holding that "[w]here a comma is used to set a
modifying phrase off from previous phrases, the modifying phrase applies to all
the previous phrases, not just the immediately preceding phrase"); N.J. Ins.
Underwriting Ass'n v. Clifford, 112 N.J. Super. 195, 204 (App. Div. 1970)
(holding that "[h]ad the modifying phrase been intended to relate to more than
its last antecedent, a comma could have been used to set off the modifier fro m
the entire series"). The Legislature undoubtedly acted on the assumption that
we would derive the intended meaning of the statute through application of this
established doctrine. See, e.g., State v. Chapland, 187 N.J. 275, 291 (2006). So,
we may confidently conclude the Legislature's omission of a comma after "other
substance" was intended to invoke the doctrine of the last antecedent in the
construction of N.J.S.A. 2C:14-1(i), thereby conveying the Legislature's intent
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that the last phrase would qualify only "other substance." 4 We thus hold that, in
seeking relief under SASPA, an alleged victim may prove the lack of consent by
proving a mental incapacity brought on by either voluntary or involuntary
intoxication.5
Having determined that the victim's intoxication – even when produced
voluntarily – may support a finding that the victim could not consent, we
consider the level of intoxication required to support such a finding. 6 It is
4
To be sure, the Legislature could have made this point more clearly if it had
defined mental incapacity as "that condition in which a person is rendered
temporarily incapable of understanding or controlling his or her conduct due to
the influence of: (i) a narcotic; (ii) an anesthetic; (iii) an intoxicant; or (iv) some
other substance administered to that person without his or her prior knowledge
or consent."
5
It is not unthinkable that a legislature might draw a distinction between
voluntary and involuntary intoxication in this setting. In fact, legislatures of at
least two states, Arkansas and Hawaii, appear to have drawn such a line. See
A.C.A. § 5-14-101(5) (defining "mentally incapacitated" as rendering a person
"temporarily incapable of appreciating or controlling the person's conduct as a
result of the influence of a controlled or intoxicating substance: (A)
[a]dministered to the person without the person's consent; or (B) [t]hat renders
the person unaware a sexual act is occurring"); Haw. Rev. Stat. § 707-700(defining "mentally incapacitated" as referring to a person "rendered temporarily
incapable of appraising or controlling the person's conduct as a result of the
influence of a substance administered to the person without the person's
consent").
6
While the Legislature drew a precise line when declaring the blood alcohol
content that renders unlawful an individual's operation of a motor vehicle,
N.J.S.A. 39:4-50, that cannot be the same line for determining when an
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probably best to consider this question from the standpoint of the well -
established meaning of "consent": a "voluntary yielding to what another
proposes or desires." Black's Law Dictionary 380 (11th ed. 2019). Stated
conversely, an "involuntary yielding" is not consent. Because the question
whether plaintiff was able to voluntarily yield to defendant's actions requires
consideration of her state of mind at the time, we find an appropriate analogy in
the intoxication defense available in the criminal justice setting because that
defense challenges the actor's ability to form the state of mind required by the
offense charged.
A criminally-accused individual's intoxication will "negative[] an element
of the offense," N.J.S.A. 2C:2-8(a), when it produces "a disturbance of mental
or physical capacities," N.J.S.A. 2C:2-8(e)(1). The Supreme Court interpreted
this latter provision "as intend[ing] nothing different" than the "firmly fixed"
concept, State v. Cameron, 104 N.J. 42, 54 (1986), that an accused's intoxication
has caused "such prostration of the faculties . . . as puts the accused in such a
individual has voluntarily agreed to engage in sexual relations. The strong
public policy that favors keeping our streets and roadways safe from "the
senseless havoc and destruction caused by intoxicated drivers," State v. Tischio,
107 N.J. 504, 512 (1987), warranted the placement of a bar lower than that which
would logically fix the place where a particular state of mind can or cannot be
formed in criminal actions or in cases like this.
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state [of being] incapable of forming an intention from which" the accused acted,
ibid. (quoting State v. Treficanto, 106 N.J.L. 344, 352 (E. & A. 1929)).
This certainly does not mean that one "who has had a few drinks" meets
the standard. Cameron, 104 N.J. at 54 (quoting State v. Stasio, 78 N.J. 467, 495
(1979) (Pashman, J., concurring and dissenting)). Far from it. "The mere intake
of even large quantities of alcohol will not suffice." Stasio, 78 N.J. at 495.
When intoxication is proposed as a defense to a criminal charge, it "cannot be
established solely by showing that the defendant might not have committed the
offense [if] sober." Ibid. (citing Final Report of the New Jersey Criminal Law
Revision Commission, Vol. II, Commentary (1971) at 68). In short, the
intoxication required to reach the "prostration of faculties" standard must be of
"an extremely high level." Cameron, 104 N.J. at 54; see also State v. Mauricio,
117 N.J. 402, 418-19 (1990).
Because the question posed here goes to the same inquiry – ascertaining
the intoxicated person's ability to form a particular state of mind – we see no
reason not to apply the "prostration of faculties" standard. The Legislature's
silence as to the degree of intoxication required in this context7 strongly suggests
7
We are mindful the Legislature made reference to intoxication in SASPA by
barring courts from denying relief "due to . . . the alleged victim's or the
respondent's alleged intoxication." N.J.S.A. 2C:14-16(b). In that same
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an intention to adopt the familiar standard that has been utilized in criminal
matters, as the Cameron Court observed, 104 N.J. at 54, for more than a century
in this State. In applying this standard, we conclude that it will not suffice for
an alleged victim to prove mere intoxication or that she would not have engaged
in sexual relations with the defendant were she not intoxicated. An alleged
SASPA victim must prove intoxication to such a degree that her faculties were
prostrated to the point of being incapable of consenting to the sexual encounter.
In turning to the judge's findings on intoxication, we start with the fact
that the judge did not apply the prostration of faculties standard. The judge only
concluded that plaintiff was "extreme[ly] voluntar[il]y intoxicat[ed]" and
"visibl[y] intoxicat[ed]." These conclusory descriptors provide little
illumination. See Cameron, 104 N.J. at 56 (observing that statements that one
was "pretty intoxicated," "pretty bad," and "very intoxicated," "are no more than
conclusory labels, of little assistance in determining whether any drinking
provision, the Legislature also commanded that relief not be denied because of:
the alleged victim's "failure to report the incident to law enforcement"; the fact
that the alleged victim "did or did not leave the premises to avoid" the event; or
"the absence of signs of physical injury to the alleged victim." Ibid. While, in
this fashion, the Legislature may have declared that intoxication could not be
used as a ground for denying relief, there is nothing in SASPA to suggest the
Legislature meant to treat the role of intoxication – as it applies to the alleged
victim's ability to consent – in a manner different from what N.J.S.A. 2C:14-1(i)
and Cameron require.
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produced a prostration of faculties"). The judge did, however, provide some
specifics. He found, for example, that "the young plaintiff consumed at least
[ten] if not more alcoholic drinks during the course of the evening," but he did
not define how many hours were encompassed by the phrase "the course of the
evening" nor did he identify the type of drinks consumed. The judge found that
plaintiff and Sylvia drank at Sylvia's home and two bars, that bartenders refused
to continue to serve Sylvia, 8 and that once at defendant's residence, plaintiff had
three more drinks. These findings relate to some of the indicia the Cameron
Court deemed relevant when it called for a consideration of "the quantity of
intoxicant consumed" and "the period of time involved." Id. at 56. But the
Cameron Court also found relevant: "the actor's conduct as perceived by others,"
what the actor "said" and how the actor "said it," how the actor "appeared" and
"acted," the actor's "coordination or lack thereof" and how that "manifested
itself[,]" whether there was an "odor of alcohol," the results of any blood-alcohol
tests, "and the actor's ability to recall significant events." Ibid. The evidence
adduced at trial did not necessarily produce useful information on all these
factors that may explain why the judge did not make findings on some of these
8
There was no assertion that either bartender refused to serve plaintiff.
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components. The judge did find, though, that plaintiff was able "to recall the
significant events," despite her testimony that she was unable to recall some
"details"9 and her memory was "hazy" about others. In the final analysis, we
will not attempt to discern whether the judge's specific findings about plaintiff's
intoxication might be interpreted as the equivalent of a finding that plaintiff's
faculties were prostrated. 10 We instead remand for further consideration of the
issue now that we have determined the correct standard to be applied.
To summarize, we conclude that mere intoxication will not suffice; to
prove a mental incapacity caused by intoxication, the alleged victim must
demonstrate by a preponderance of the evidence that her faculties were
prostrated. Because the judge did not apply this standard, we remand for further
9
In asserting an inability to recall "exact details," plaintiff was able to recall
with detail some of the events preceding the sexual encounter, including
"walking around in the main area [of defendant's home] for what felt like hours
. . . trying" to get Sylvia to go to bed and how Sylvia kept "coming back out."
She was also able to remember and describe a telephone call with a friend who
had just learned his younger brother had been diagnosed with cancer. She
recalled that her friend was angry with her "for being so drunk" and she
remembered defendant putting her "over his shoulder and carr[ying] [her] into
the house." She also provided many specifics about the sexual encounter.
10
For the same reason, we do not defer to the judge's conclusion that "plaintiff's
extreme voluntary intoxication rendered her 'temporarily incapable of
understanding the nature of her conduct,'" because that ultimate conclusion was
reached without any apparent application of the prostration of faculties standard.
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findings. The judge may reopen the record to allow for additional testimony on
this or any other subject if he concludes it would be helpful in analyzing and
reconsidering not only the intoxication issue but all aspects of the consent issue .
We also do not foreclose the judge's receipt of additional testimony or his
further amplification of his second prong findings, which we do not otherwise
address at this time, despite defendant's contention that the evidence was
inadequate and the findings speculative.
***
Remanded for further proceedings in conformity with this opinion. We
do not retain jurisdiction.
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