Is it Domestic Violence or Rough Sex?

Domestic violence is a serious crime.  The New Jersey State Police Domestic Violence report for 2016 (the most recent available) demonstrates that there were 63,420 domestic violence incidents reported statewide, which was a 3% increase from 2015 when there were 61,659 reported incidents.  Each year, a significant portion of domestic violence complaints are filed by individuals in dating relationships.

While most domestic violence complaints are bona fide, there are many instances where defendants (men and women alike) are falsely accused. In addition, what may objectively appear to be acts of domestic violence do not always constitute such acts in the eyes of the law. One of the most recently published and ground breaking domestic violence cases, T.M. v. R.M.W., teaches us that context is key when examining the legal import of a violent act.

In T.M. v. R.M.W, the parties had an on-again, off-again relationship where they engaged in periodic sexual relations over a span of eight years.  One night, the defendant went to the plaintiff’s home after she invited him and they engaged in rough consensual sex. At some point during the rough consensual sex, the defendant punched the plaintiff in the face with a closed fist. The parties continued to have sexual relations after the punch.

Some time thereafter, the plaintiff filed a domestic violence complaint against the defendant, alleging that she was assaulted as a result of the punch.   Ultimately, after hearing testimony from both parties, the trial court determined that the pattern and practice of the parties’ past sexual encounters in conjunction with the plaintiff continuing to have sex after she was punched by the defendant illustrated consent to the violence.  Specifically, the parties typically engaged in slapping, choking, and hair pulling in conjunction with having sexual relations. While the trial court acknowledged that punching someone directly in the jaw would ordinarily be offensive and harmful enough to be considered harassment or simple assault, the unique circumstances of the parties’ relationship where they regularly engaged in rough consensual sex did not warrant the implementation of the protections provided under the Prevention Against Domestic Violence Act.

T.M. v. R.M.W. demonstrates that things may not always be how they appear and what looks like domestic violence may in actuality be rough sex.  The case also demonstrates how important it is to have adequate representation at a domestic violence hearing because the stakes are so high.  Persons accused of domestic violence face severe legal consequences, including but not limited to, seizure of guns, being evicted from his or her residence, assessment of money damages, counsel fees, and other economic repercussions.  Other forms of emergent relief may also be regularly addressed in these proceedings, including but not limited to, child custody, support, and use of marital assets.  Once a Final Restraining Order is entered, the violation of that order carries the imposition of criminal penalties and the potential for incarceration.

Attorneys can adequately protect victims of domestic violence and defend persons falsely or mistakenly accused of committing acts of domestic violence.  You should be prepared to hire an attorney who is prepared to work expeditiously and to treat these cases with the importance that they deserve.

By: Victoria E. Paone, Esq.*

* (Editor’s note: Victoria E. Paone, Esq. is an associate at the Law Offices of Paone, Zaleski & Murphy working out of the firm’s Red Bank office, located at 120 Maple Avenue. Victoria’s professional history includes clerking in Monmouth County for the Honorable Mara E. Zazzali-Hogan for both the Family part, Chancery Division and Civil Division for 2016-2017. She is currently a member of the New Jersey State Bar, Middlesex Bar Association, Monmouth Bar Association and Aldona E. Appleton Family Law Inn of Court. Victoria limits her practice to divorce, child support, child custody, equitable distribution, alimony, domestic violence, alimony, palimony and all other family law issues. Her monthly column, “Divorce Hotline,” will serve to inform readers as to family law news, advise as to the divorce process, comment on recently published family law cases and more. Paone, Zaleski & Murphy can be contacted at 732-750-9797.)