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Stalking of Women – Some Judges Still Don’t Get It

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The common definition of stalking generally includes, very simply, unwanted contact and/or surveillance by one person or group of another person. Under New Jersey law, the crime of stalking as defined by the Anti-stalking Law and is more complex.  Under the Anti-stalking Law, a person is guilty of stalking, a crime of the fourth degree, if he (or she) purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.  Therefore, contrary to the popular misconception that criminal charges are based on an individual’s own subjective fears, the basis for criminal charges of stalking are actually determined according to the objective standard of a reasonable person. 

Victims of stalking usually request a Restraining Order against the assailant.  A Temporary Restraining Order (TRO)  is granted first and then followed by a hearing for a judge to decide whether or not to grant a Final Restraining Order (FRO).  When deciding whether to grant an FRO,  a court must make two findings under the “Silver Test”: (1)  whether or not the victim has proven, by a preponderance of the credible evidence, that one or more of the “predicate acts” (assault, trespass, or stalking, for example) in the Prevention of Domestic Violence Law (PVDA) has occurred; and (2)  whether an FRO  is required to protect the victim from future acts or threats of violence. Finally, the court must find that “relief is necessary to prevent further abuse.”

New Jersey courts have established that the commission of one of the predicate acts alone is not enough to warrant the issuance of a domestic violence restraining order.  Rather, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in  PVDA, to protect the victim from an immediate danger or to prevent further abuse. 

In a recent New Jersey Appeals Court case, A.M. v. M.H.A.H., a woman appealed the denial of her application for an FRO against her estranged husband under the PDVA.  The Appellate Court vacated the dismissal of her complaint, ordered the reinstatement of her original TRO, and sent the case back to the lower court judge to decide whether an FRO should be issued against husband. 

The domestic violence complaint was filed because the wife claimed that her husband assaulted, harassed, and stalked her.  At the hearing, she testified that shortly after the two were married, her husband began to believe that she was unfaithful and he bought devices, such as cameras and voice recorders disguised as wall chargers, battery power packs, a wall clock and smoke detector to spy on her. The wife found these and confronted her husband about them. 

He admitted that he had planted the devices but denied ever using them.  But she also testified at the hearing that her husband would appear out of nowhere whenever she would go somewhere.  She said that although he did not have a driver’s license, he would hire people to drive him around while he hid in the back seat of the car.  Also, she testified that the husband told people in the community, such as local shopkeepers, that she was unfaithful, which caused her embarrassment.  Finally, she testified that he even threatened to tell her family that she was unfaithful which, because she was Muslim, would cause her family to want to kill her.   

The husband admitted to threatening to reach out to his wife’s family. Plaintiff and that he had a physical altercation with her, which caused her to “shied away from others in public, cry at work and fear for her safety.”  Following threatening text messages and voicemails, she was “scared to go home” and called friends to stay at her home with her.  

The lower court, after the trial, entered an order vacating the TRO and dismissing the complaint because the judge believed that the wife did not meet her burden of proving assault and though defendant’s actions were considered “rude and annoying” they did not rise to the necessary level of harassment. The Court also found that Defendant’s actions did not constitute stalking and that they also did not rise to the level of domestic violence.  

But the Appellate Court decided that Defendant had – in fact – violated the Anti-Stalking Statute because a reasonably objective person would fear for herself under the totality of the circumstances.  In addition, the Court found that the absence of a prior history did not negate their conclusion. It was also found that under the second prong, the trial court did not consider whether an FRO was necessary because it found that Defendant had not committed a predicate act of stalking, a big mistake. 

Sadayah Q. DuRant is a recent graduate of Rutgers School of Law, where she was Editor of the Race and The Law Review Journal. We are pleased to introduce her as a new contributor. 

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