Assault Beyond Consent
Aug 2, 2023 | Written by: | Share
Content Warning: this article contains sensitive and explicit language that some people may find disturbing or offensive. Reader discretion is advised.
In 2020, 63,058 domestic violence offenses were reported by the New Jersey police. Assaults accounted for approximately 43% of the reported incidents.
Under N.J.S.A. 2C:12-1, individuals are guilty of assault if they "(1) Attempt to cause or purposely, knowingly or recklessly cause bodily injury to another; or (2) Negligently cause bodily injury to another with a deadly weapon; or (3) Attempt by physical menace to put another in fear of imminent serious bodily injury."
When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if: (1) The bodily harm consented to or threatened by the conduct consented to is not serious.
The entry of a domestic violence restraining order requires a trial court to make certain findings. The court "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. If a trial court finds a defendant has committed a predicate act of domestic violence, it next must determine if a restraining order is needed for the victim's protection[i].
What happens if alleged consensual sex goes too far? What happens if BDSM[ii] is part of your supposed private sex life?
In the recent unreported decision of A.M.K. v. R.S.L, the NJ Appellate Division considered that question.
“According to plaintiff, during their liaison, the parties engaged in oral sex on multiple occasions, vaginal sex on one occasion, defendant urinated and spit in her mouth, forced her to eat her feces, hit and choked her. Plaintiff stated defendant strangled her to the point of unconsciousness. She testified she felt defendant was controlling her and she was under duress. Plaintiff presented pictures of bite marks on her breasts and thighs, and marks on her thighs where defendant struck her. Plaintiff testified she felt she had to comply with defendant's requests because he knew where she lived and worked. She said defendant also stated he could kill her if he needed to. During the trial, plaintiff said she needed the FRO because she was "very afraid" of defendant.”
“During his testimony, defendant testified the parties discussed every sexual act before they engaged in it and all of the conduct between them was consensual. He described their liaison as a "BDSM" relationship. Defendant stated plaintiff requested he do certain acts with and to her, including being choked, bruised, and spanked. He produced text messages in which plaintiff referenced many of the acts, her request for the conduct, and her enjoyment of it.”
The court found that the defendant assaulted the plaintiff beyond the point to which someone could consent. The judge specifically referred to the choking incidents and the physical abuse seen in the pictures admitted into evidence. The judge found that the "defendant readily admits that he choked plaintiff to the point where she . . . almost passed out" and "[t]hat's a dangerous thing to do because one could die from that. And one does not consent to dying . . . ."
The judge further stated "[o]ne cannot consent to being injured. One cannot consent to losing consciousness from being choked. These actions the [c]ourt finds are clear abusive conduct on . . . defendant's part. These actions are of such nature that the [c]ourt must find that there was abusive conduct." In addition, the judge found the defendant's "assaultive conduct" was "egregious." He further stated: "That this repeat conduct on . . . defendant's part can create an indication of . . . plaintiff being abused[,] and immediate danger is apparent from the testimony of the parties."
The defendant appealed the entry of the Final Restraining Order (FRO), and the Appellate Division heard the matter. The Appellate Division agreed with the trial court that the finding of assault was supported, indicating, “Defendant's conduct caused significant bodily injury and could have resulted in plaintiff's death. Therefore, the trial court's finding that plaintiff could not consent to the assaultive conduct, specifically choking, was supported on legal grounds.”
While the matter was remanded back to the trial court on technical terms to address the second prong of Silver, that is not the important takeaway from this opinion. Instead, readers should consider that what you may believe to be a voluntary, consensual relationship between two adults may not be the case. The court makes clear that a person cannot consent to the assault (as detailed in this case) and that is something very important to understand.
Domestic violence matters are complex, sensitive and extraordinarily fact-sensitive. It is critical to have a qualified attorney who is familiar with these cases to represent your interests. In certain circumstances, it may also be necessary to have a criminal attorney involved as well.
[i] Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006)
[ii] This is an abbreviation for bondage, discipline, sadism, and masochism.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2022, to the NJ Super Lawyers list in 2023, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.