C.R. v. M.T.

Annotate this Case

In June 2018, plaintiff “Clara” and defendant “Martin” had sex after a night of drinking. Plaintiff alleged she was too intoxicated to give consent, but defendant claimed the entire encounter was consensual. Plaintiff filed for a temporary restraining order pursuant to the Sexual Assault Survivor Protection Act of 2015 (SASPA), which required consideration of at least two factors, commonly referred to as the two "prongs:": “(1) the occurrence of one or more acts of nonconsensual sexual contact . . . against the alleged victim; and (2) the possibility of future risk to the safety or well-being of the alleged victim.” After a hearing, the trial court found both parties’ accounts to be “equally plausible.” Applying the preponderance of the evidence standard, the court concluded that Clara’s extreme voluntary intoxication rendered her “temporarily incapable of understanding the nature of her conduct” and that she had therefore been subjected to nonconsensual sexual contact within the meaning of SASPA’s first prong. With regard to the second prong, the court noted the lack of evidence that Martin sought to contact Clara after their encounter. Nonetheless, recognizing that SASPA was intended to provide protection to victims of nonconsensual sexual contact, as well as the possibility that Martin “may now harbor a grudge against [Clara] which would probably not have occurred but for these proceedings,” the court concluded that “it is more likely than not that a final restraining order is appropriate.” The Appellate Division reversed and remanded, holding that the proper standard to assess whether plaintiff was incapable of consent due to intoxication was the prostration of faculties standard. The New Jersey Supreme Court found both lower courts were wrong: the appropriate standard to determine whether sexual activity was consensual under SASPA was the standard articulated in New Jersey in Interest of M.T.S., 129 N.J. 422 (1992), which was applied from the perspective of the alleged victim. The trial court's judgment was reversed and the matter remanded for the trial court for assessment under the
standard articulated in M.T.S.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

C.R. v. M.T. (A-58-19) (083760)

Argued November 30, 2020 -- Decided September 28, 2021

PIERRE-LOUIS, J., writing for a unanimous Court.

In this case, the Court considers for the first time the standard that should apply in
determining whether an alleged sexual assault victim was too intoxicated to give consent
under the Sexual Assault Survivor Protection Act of 2015 (SASPA).

In June 2018, plaintiff “Clara” and defendant “Martin” engaged in sexual activity
after a night of drinking. Plaintiff alleges she was too intoxicated to give consent, but
defendant claims that the entire encounter was consensual. Plaintiff filed for a temporary
restraining order pursuant to SASPA, which requires consideration of at least two factors,
commonly referred to as the two “prongs” of SASPA: “(1) the occurrence of one or more
acts of nonconsensual sexual contact . . . against the alleged victim; and (2) the possibility
of future risk to the safety or well-being of the alleged victim.” N.J.S.A. 2C:14-16(a).

After conducting a hearing, the trial court found both parties’ accounts to be
“equally plausible.” Applying the preponderance of the evidence standard, the court
concluded that Clara’s extreme voluntary intoxication rendered her “temporarily
incapable of understanding the nature of her conduct” and that she had therefore been
subjected to nonconsensual sexual contact within the meaning of SASPA’s first prong.
Turning to the second SASPA prong, the judge noted the lack of evidence that Martin
sought to contact Clara after their encounter. Nonetheless, recognizing that SASPA was
intended to provide protection to victims of nonconsensual sexual contact, as well as the
possibility that Martin “may now harbor a grudge against [Clara] which would probably
not have occurred but for these proceedings,” the court concluded that “it is more likely
than not that a final restraining order is appropriate.”

The Appellate Division reversed and remanded, holding that the proper standard to
assess whether plaintiff was incapable of consent due to intoxication was the prostration
of faculties standard. 461 N.J. Super. 341, 353 (App. Div. 2019). The Court granted
certification. 241 N.J. 329 (2020).

HELD: The appropriate standard to determine whether sexual activity was consensual
under SASPA is not the prostration of faculties standard, which focuses on the mental
state of the defendant, but rather the standard articulated in State in Interest of M.T.S.,
1
129 N.J. 422 (1992), which is applied from the perspective of the alleged victim. The
M.T.S. standard requires a showing that sexual activity occurred without the alleged
victim’s freely and affirmatively given permission to engage in that activity. The
standard for consent for an alleged victim in a SASPA case should be no different than
the standard for consent for an alleged victim in a criminal sexual assault case. The
Court reverses and remands this matter to the trial court for assessment under the
standard articulated in M.T.S.

1. SASPA is located within the Criminal Code in Chapter 14, which governs sexual
offenses, but SASPA is not a penal statute. Rather, SASPA offers relief in the form of a
civil protective order to alleged victims of nonconsensual sexual contact. A person may
apply for, and the court may issue, a protective order under SASPA “regardless of
whether criminal charges based on the incident were filed and regardless of the
disposition of any such charges.” N.J.S.A. 2C:14-14(c)(1). A Superior Court judge may
grant a temporary protective order and “any relief necessary to protect the safety and
well-being of an alleged victim.” Id. at -15(a). Upon an application for a final protective
order, the Superior Court must hold a hearing and the applicant must prove the
allegations by a preponderance of the evidence. SASPA provides that the court shall
consider but not be limited to the factors commonly referred to as the two “prongs” of
SASPA set forth in N.J.S.A. 2C:14-16(a). (pp. 16-18)

2. SASPA does not define “consent” or establish guideposts for determining when sexual
activity is nonconsensual. In 1992, however, the Court issued M.T.S., a landmark
decision that established affirmative consent as the standard in sexual assault cases. See
129 N.J. 422. In M.T.S., the Court conducted an extensive examination of the history of
rape laws throughout the country, particularly the stigma that has historically been
attached to alleged victims. The Court detailed the history of mistrust of victim
testimony and concluded that the showing of resistance required in many jurisdictions
had the effect of putting the rape victim on trial. To eliminate the burden victims bore of
showing non-consent, the Court determined that the better standard was to look at
whether permission to engage in sexual activity was freely and affirmatively given. The
Court clarified that “permission may be inferred either from acts or statements reasonably
viewed in light of the surrounding circumstances.” Id. at 444. (pp. 19-21)

3. In 2020, the Legislature amended the criminal sexual assault statute so that all
references to “physical force” were removed and replaced with references to the standard
adopted in M.T.S. See N.J.S.A. 2C:14-2. The Legislature acknowledged that since the
M.T.S. decision, courts that consider sexual assault cases need to use both the statute and
the court decision to determine the elements necessary for conviction. Although the
Legislature in enacting SASPA in 2015 made no mention of how courts were to go about
determining whether the sexual activity in question was nonconsensual, the Legislature
was certainly aware of the M.T.S. holding and that courts had been applying the
decision’s affirmative consent standard in the decades since that case. (pp. 21-23)
2
4. The Court reviews the prostration of faculties standard, which it has long applied to
establish whether a criminal defendant was too intoxicated to form the requisite mens rea
for a charged offense. Application of that standard here would impose on an alleged
victim the high burden of establishing that she was too intoxicated to consent. But under
New Jersey statutes and case law, the standard for consent applicable to an alleged victim
and the standard for an intoxication defense applicable to an accused criminal defendant
are different. A holding that alleged victims of sexual assault seeking a protective order
should be held to the same standard as criminal defendants would set the Court’s law
back decades to a time when alleged victims were the ones essentially put on trial, and
would be inconsistent with the standard set forth in M.T.S. The Court finds it unlikely
that the Legislature intended to incorporate the term “mentally incapacitated” from the
criminal sexual assault statute into SASPA, given that it made no attempt to do so in
drafting the plain language of the statute and its awareness of the M.T.S. standard. The
language of N.J.S.A. 2C:14-16(b), further, is consistent with applying the standard set
forth in M.T.S. and undermines any notion that the Legislature intended alleged victims
of sexual assault to be put on trial with the prostration of faculties standard. (pp. 23-26)

5. The prostration of faculties standard is and has only ever been applied to alleged
criminals seeking to evade culpability. That concept has no place in the Court’s
jurisprudence as applied to alleged victims of sexual assault seeking a protective order.
The Court remands the matter for reconsideration of the final restraining order and
whether the sexual activity was nonconsensual utilizing the M.T.S. affirmative consent
standard. (p. 27)

6. The Court’s remand encompasses a reconsideration of the second prong of SASPA --
whether there is a “possibility of future risk to the safety or well-being of the alleged
victim.” N.J.S.A. 2C:14-16(a)(2). The trial court first noted that there was no evidence
that defendant sought to contact plaintiff after the incident but then quickly found that
prong two was satisfied because defendant was “subjected to legal fees and may now
harbor a grudge against the plaintiff.” It cannot be that simply filing for a protective
order is sufficient to satisfy prong two or it would be met in every single SASPA case.
That could not have been the Legislature’s intention. The trial court’s factual findings
appear to counter plaintiff’s establishing prong two. The Court remands so that the trial
court may expand upon its abbreviated discussion of prong two and make additional
findings of fact that support a determination that the prong has been satisfied, or not, in
deciding whether to issue the final restraining order. (pp. 27-28)

REVERSED and REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-LOUIS’s
opinion.

3
SUPREME COURT OF NEW JERSEY
A-
58 September Term 2019
083760

C.R.,

Plaintiff-Appellant,

M.T.,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
461 N.J. Super. 341 (App. Div. 2019).

Argued Decided
November 30, 2020 September 28, 2021

Andrew Vazquez-Schroedinger argued the cause for
appellant (South Jersey Legal Services; attorneys,
Andrew Vazquez-Schroedinger, Kenneth M. Goldman,
and Douglas E. Gershuny, on the briefs).

Nancy Kennedy Brent argued the cause for respondent
(The Kennedy Brent Law Firm, attorneys; Nancy
Kennedy Brent, on the brief).

Mary M. McManus-Smith argued the cause for amicus
curiae (Legal Services of New Jersey, attorneys; Mary M.
McManus-Smith, and Melville D. Miller, Jr., on the
briefs).

CJ Griffin argued the cause for amici curiae New Jersey
Coalition Against Sexual Assault and Partners for

1
Women and Justice (Pashman Stein Walder Hayden;
attorneys, CJ Griffin, of counsel, and on the brief).

Victoria L. Chase submitted a brief on behalf of amici
curiae Rutgers School of Law (Camden) Domestic
Violence Clinic and Domestic Violence Project (Rutgers
Domestic Violence Clinic, attorneys; Victoria L. Chase,
and Denise M. Higgins, on the brief).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.

In this case, we consider for the first time the standards required for

entry of an order of protection to a sexual assault victim under the Sexual

Assault Survivor Protection Act of 2015 (SASPA). Specifically, we are asked

to resolve the standard that should apply in determining whether an alleged

sexual assault victim was too intoxicated to give consent. After a night of

drinking, plaintiff and defendant engaged in sexual activity. Plaintiff alleges

that it was nonconsensual and that she was too intoxicated to give consent.

Defendant claims that the entire encounter was consensual. Plaintiff filed for a

temporary restraining order pursuant to SASPA. The trial court granted the

restraining order and found that plaintiff was too drunk to consent.

On appeal, the Appellate Division reversed and remanded the matter to

the trial court and directed the trial court to conduct additional fact-finding

regarding plaintiff’s level of intoxication that night. C.R. v. M.T., 461 N.J.

Super. 341, 353 (App. Div. 2019). Specifically, the Appellate Division held

2
that the proper standard by which the trial court must assess whether the

alleged victim was too intoxicated to give consent is the “prostration of

faculties” standard, id. at 350-51, a standard utilized only when criminal

defendants assert intoxication as a defense to negate the requisite mens rea to

commit a crime. The Appellate Division remanded the matter to the trial court

for the application of the prostration of faculties standard. Id. at 353.

We granted plaintiff’s petition for certification. We hold that the

appropriate standard to determine whether sexual activity was consensual

under SASPA is not the prostration of faculties standard, which focuses on the

mental state of the defendant, but rather the standard articulated in a criminal

case almost three decades ago in State in Interest of M.T.S., 129 N.J. 422

(1992), which is applied from the perspective of the alleged victim. The

M.T.S. standard requires a showing that sexual activity occurred without the

alleged victim’s freely and affirmatively given permission to engage in that

activity. The standard for consent for an alleged victim in a SASPA case

should be no different than the standard for consent for an alleged victim in a

criminal sexual assault case. Because the trial court applied a different

standard, we reverse and remand this matter for assessment under the standard

articulated in M.T.S.

3
I.

We rely on the testimony from the family court hearing for the following

factual summary.

On the evening of June 26, 2018, twenty-one-year-old Clara went to her

close friend Sylvia’s house, with plans to go out to a bar together. 1 There, they

drank Smirnoff Ice -- Clara consumed two shots and Sylvia took four shots --

before Sylvia’s roommate drove them to Cinder Bar. At the bar, Clara and

Sylvia consumed more alcohol, until the bartender refused to serve them

because Sylvia was being “really loud” and “really inappropriate for that

setting.” Together on speaker phone, Sylvia and Clara called Sylvia’s cousin

Martin, the defendant, and asked if he would join them there. Martin declined,

stating he had to work early the next morning and that they should “go home”

because they were drunk.

Sylvia’s roommate picked up Clara and Sylvia and took them to another

bar, where Clara had two more drinks. Around 11:00 p.m., the bartender --

who knew Martin -- texted him that “there’s a girl here saying that [she is

your] cousin [with] a friend, and they seem to be all fired up.” To Sylvia and

Clara’s surprise, Martin then arrived at the bar and said “[c]ome on, we’re

1
Pseudonyms are used to protect the identities of the parties and witnesses in
this matter.
4
leaving.” Clara responded that she had not finished her drink or paid yet, and

Martin said to “chug [the drink] and not to worry about it.” Clara complied

and left along with Sylvia in Martin’s car.

Sylvia asked Martin to take them home, but Martin said “[n]o. We’re

just going to my house. I have work in the morning and [your roommate] can

pick you up from my house.” When they arrived at Martin’s house, Martin put

Sylvia to bed in his guest room with a bucket next to the bed because

according to Martin, she was “really intoxicated.” Sylvia, however, wanted to

stay up and drink some more, so she came out of the room a few times, and

Martin returned her to the room each time. Meanwhile, Clara went to Martin’s

fridge and had three more drinks. Martin testified that he “had a couple with

them because [he] was up,” but stated that he was not drunk at the time.

At that point, Clara and Martin’s versions of events diverge.

Clara’s Testimony

According to Clara, after Martin put Sylvia to bed, she remembers “kind

of walking around in the main area for what felt like hours” as Sylvia kept

coming back out of the bedroom and Martin kept putting her back to bed.

Clara also recalled finding out that a close friend’s brother had cancer and

going outside to call and console him. She said that her friend was mad at her

5
for being so drunk on the phone and Sylvia and Martin came outside to bring

her back into the house. Clara stated that after Sylvia went back to bed, Martin

put Clara over his shoulder and carried her into the garage.

Clara testified that she made several attempts to leave the garage until

Martin stood in front of the door. She said she knew she “couldn’t get out this

time” because he was “blocking the doorway” and was “at least double

[Clara’s] size.” Martin is over six feet tall and weighs roughly 280 pounds.

Clara said that Martin told her multiple times to take off her pants, and

although she did not comply at first, she eventually did, feeling “terrified

because [she] didn’t see . . . another way out.” Clara testified that she heard

him repeatedly say “I wanna eat the box.” She remembered seeing her

underwear around Martin’s neck, and despite her efforts, he refused to give it

back to her. Clara explained that Martin “was intimidating” and that she “was

terrified.” The next thing she recalled was “being on [her] forearms and [her]

shins and [Martin’s] head was behind [her and] between [her legs].” She “felt

frozen” and told him “I don’t want this. I don’t want this. I don’t want this,”

but Martin did not listen to her. Clara stated that Martin performed both oral

sex and vaginal intercourse on her. Clara testified multiple times that she was

heavily intoxicated during the encounter.

6
Clara said that when she realized that Martin had stopped, she left to go

to the room where Sylvia was sleeping. She said that she laid down next to

Sylvia and pretended to sleep. She remembered Martin coming into the room

and looking over them before leaving.

Clara disclosed the assault to a friend, who took her to the police station

to file a report on June 28, 2018. A detective took her to the hospital, where

staff documented cuts and bruises on Clara’s arms, legs, and hip, and

completed a sexual assault kit.

Martin’s Testimony

Martin testified that his sexual encounter with Clara was entirely

consensual. He stated that when he arrived home with Sylvia and Clara, he

went to lay down on his bed. He said that he got up when he heard a

“commotion” near the entrance to his house and went outside to find Sylvia

and Clara “dancing and having a good time.” Martin testified that he went to

“see if everything was all right” and told Sylvia to go to bed.

Martin testified that after he went back to his bedroom to sleep, Clara

came in and asked for a blanket. Martin said that he gave her one off his bed

and Clara took it to a couch in another room. According to Martin, after

“laying there and then thinking it was really cold,” he went to look for his

7
blanket and laid down on the couch with Clara. Then, Martin explained,

“things started getting like a little hot and heavy,” with them “mutually

kissing.” Martin said that Clara looked at him and asked if he had any

condoms, to which he responded “[a]re you sure you still want to do this?”

Clara replied, “Yes. But we have to go out to the garage because [Sylvia]

already thinks I’m a whore.”

Next, Martin remembered they went to the garage and Clara took her

pants off. He stated that he “performed oral” sex on Clara, after which Clara

“got down on her hands and knees and [Martin] went to penetrate.” Martin

testified that Clara then performed oral sex on Martin, crawling across the

concrete floor on her hands and knees. Afterwards, they went to their

respective bedrooms; Martin denied going to look at Clara in her room.

According to Martin, Clara never indicated that she wanted to stop their sexual

activities and he viewed the encounter as a “one-night stand.” However, he

acknowledged that Clara was intoxicated.

Martin stated that he cooperated with the police and to his knowledge,

he was never charged with a crime. A detective later came to speak with him

and collected Clara’s underwear, which Martin retrieved from his bed. Martin

claimed he had “no idea” how the underwear ended up there. Martin did not

contact or communicate with Clara after the incident.

8
C.

On July 2, 2018, Clara filed for a temporary protective order against

Martin pursuant to SASPA, N.J.S.A. 2C:14-13 to -21. After conducting a

plenary hearing, the trial court granted a final order of protection and issued a

written opinion on August 7, 2018. The trial court judge recounted that Clara

was tasked with proving the two SASPA elements by a preponderance of the

evidence. In analyzing the first SASPA prong -- whether there was an act of

nonconsensual sexual contact -- the court reviewed the factual findings and

found both parties’ accounts to be “equally plausible.” The judge highlighted,

however, that it was undisputed that Clara “was very intoxicated” at the time

of the sexual encounter and that she “consumed at least 10 if not more

alcoholic drinks during the course of the evening.”

To determine whether the sexual contact was consensual, the court

looked to N.J.S.A. 2C:14-2, the criminal statute for aggravated sexual assault,

and noted that its standard for non-consent included a victim “whom the actor

knew or should have known . . . had a mental disease or defect which rendered

the victim temporarily . . . incapable of understanding the nature of his

conduct, including, but not limited to, being incapable of providing consent.”

Acknowledging that our case law is silent on the issue of whether extreme

voluntary intoxication could render a person temporarily incapable of

9
understanding the nature of her conduct, the court looked to the New Jersey

State Police’s website, which construed N.J.S.A. 2C:14-2 to include voluntary

intoxication.

Applying the preponderance of the evidence standard, the judge found it

“more likely than not that [Clara] was too intoxicated to give consent,”

emphasizing the unusual choice for the parties to engage in sexual activities in

the garage and noting that Clara would not have “subjected herself to these

proceedings” if her actions were consensual. Thus, the court concluded that

Clara’s extreme voluntary intoxication rendered her “temporarily incapable of

understanding the nature of her conduct” and that she had therefore been

subjected to nonconsensual sexual contact within the meaning of SASPA’s

first prong.

Turning to the second SASPA prong -- whether there was a possibility of

future risk to the safety or well-being of the alleged victim -- the judge noted

the lack of evidence that Martin sought to contact Clara after their encounter.

Nonetheless, recognizing that SASPA was intended to provide protection to

victims of nonconsensual sexual contact, including people not in dating

relationships, as well as the possibility that Martin “may now harbor a grudge

against [Clara] which would probably not have occurred but for these

10
proceedings,” the court concluded that “it is more likely than not that a final

restraining order is appropriate.”

Martin appealed, and the Appellate Division reversed and remanded for

further findings on the first SASPA prong. C.R., 461 N.J. Super. at 344, 353.

In evaluating whether the trial court judge properly found Clara to be

incapable of consent, the Appellate Division examined the definition of

“mentally incapacitated,” as used in N.J.S.A. 2C:14-2(a)(7). Id. at 347-49.

After finding that the plain language of the definition included both voluntary

and involuntary intoxication, the court considered the level of intoxication

required to support a finding that a victim could not consent. Id. at 349-51.

The court began by looking to the criminal intoxication defense

“because that defense challenges the actor’s ability to form the state of mind

required by the offense charged.” Id. at 350. The court noted that to establish

such a defense, a defendant must demonstrate “such prostration of the faculties

. . . as puts the accused in such a state [of being] incapable of forming”

criminal intent. Ibid. (alteration and omission in original) (quoting State v.

Cameron, 104 N.J. 42, 54 (1986)). The Appellate Division determined that the

prostration of faculties standard is proper for a SASPA analysis because “[t]he

Legislature’s silence as to the degree of intoxication required in this context

11
strongly suggests an intention to adopt the familiar standard that has been

utilized in criminal matters.” Id. at 351 (footnote omitted). Emphasizing that

the question in this case goes to the same inquiry -- “ascertaining the

intoxicated person’s ability to form a particular state of mind” -- the court

found “no reason not to apply the 'prostration of faculties’ standard.” Id. at

350-51.

In applying that standard, the Appellate Division found that the trial

court failed to make the proper factual findings to determine whether Clara

was sufficiently intoxicated to be incapable of consent. Id. at 351-52.

Specifically, the court pointed to the lack of factors considered in State v.

Cameron, including “'the actor’s conduct as perceived by others,’ what the

actor 'said’ and how the actor 'said it,’ . . . 'and the actor’s ability to recall

significant events.’” Id. at 352 (quoting Cameron, 104 N.J. at 56). Noting that

“mere intoxication will not suffice,” the court remanded for further findings to

determine whether Clara could demonstrate by a preponderance of the

evidence that her faculties were prostrated. Id. at 353.

We granted Clara’s petition for certification. 241 N.J. 329 (2020). We

also granted amicus curiae status to Legal Services of New Jersey (Legal

Services), the Domestic Violence Clinic and Project at Rutgers School of Law

12
-- Camden (Rutgers), and the New Jersey Coalition Against Sexual Assault and

Partners for Women and Justice.

II.

Clara argues that the Appellate Division erred in applying the prostration

of faculties standard of consent; rather, according to Clara, this Court’s

affirmative consent standard in M.T.S., 129 N.J. 422, is controlling in

determining “nonconsensual” sexual contact under SASPA. She emphasizes

that the criminal prostration of faculties standard is wholly inapplicable to

SASPA because, unlike the Prevention of Domestic Violence Act (PDVA),

SASPA does not reference the criminal code in its definitions of predicate

offenses. She asserts that the Legislature instead intended for the affirmative

consent standard to govern because the Legislature is presumed to be aware of

M.T.S. and judicial construction of its statutes. According to Clara, such a

standard is more consistent with SASPA’s goal of protecting sexual assault

victims because the victims’ subjective state of mind is irrelevant and because

the M.T.S. standard does not require that victims bear the burden of proof to

show lack of consent.

Amicus Legal Services largely echoes Clara’s arguments, asserting that

the Appellate Division erred in deviating from the M.T.S. affirmative consent

13
standard. Legal Services emphasizes that the more restrictive criminal

aggravated sexual assault standard for consent undermines SASPA’s

protection given that “[a]bout half of all sexual assault victims report that they

were drinking alcohol at the time of the assault.”

Amicus Rutgers supports Clara’s position and outlines the history and

policy behind SASPA to provide context for its broad civil protections for

victims of sexual assault. Like Clara and Legal Services, Rutgers maintains

that the prostration of faculties standard is inapplicable to SASPA because

SASPA does not incorporate the criminal code and because application of that

standard here would impermissibly shift the burden of proof to the victim and

thus run counter to SASPA’s goals.

Amici New Jersey Coalition Against Sexual Assault and Partners for

Women and Justice similarly argue that the affirmative consent standard

should apply to SASPA. They emphasize that the prostration of faculties

standard is intended for defendants seeking to escape liability for wrongdoing,

not for plaintiffs seeking protective orders to prevent future harm.

Furthermore, according to amici, such a standard is difficult for sexual assault

victims to meet because they often proceed pro se, do not have a right to

counsel, and lack access to evidence available to criminal defendants that

would be helpful in establishing prostration of faculties.

14
B.

Martin counters that the Appellate Division decision should stand

because the prostration of faculties standard is not an inappropriate or an

unduly burdensome standard for SASPA applicants. He contends that under a

prostration of faculties analysis for voluntary intoxication, the trial court must

identify how intoxicated the victim was, which does not shift the burd en of

proof to the victim. Martin does not dispute whether affirmative consent is a

more appropriate standard for SASPA, but instead asserts that Clara did, in

fact, give affirmative consent because the trial court could not find that Clara

did not consent by a preponderance of the evidence. He insists that a victim’s

level of intoxication should be merely one factor for consideration in

determining whether consent existed, which the Appellate Division

appropriately weighed in its prostration of faculties analysis. Finally, Martin

claims that if this Court finds sexual assault victims are unable to consent

merely because they consume alcohol, such a view would be unduly

paternalistic and misogynistic because it suggests women need someone else to

decide their ability to consent for them. 2

2
The current sexual assault statute is gender neutral. See N.J.S.A. 2C:14-2.

15
III.

Our determination of the appropriate standard in assessing whether an

alleged victim under SASPA was incapable of consent due to intoxication is a

question of law, so our review is de novo. See T.L. v. Goldberg, 238 N.J. 218,

228 (2019). This Court, therefore, “owe[s] no deference to the legal

conclusions reached by the trial court and Appellate Division.” Kaye v.

Rosefielde, 223 N.J. 218, 229 (2015) (quoting Borough of Harvey Cedars v.

Karan, 214 N.J. 384, 401 (2013)).

Appellate courts will, however, defer to the trial court’s factual findings

because the trial court has the “opportunity to hear and see the witnesses and

to have the 'feel’ of the case, which a reviewing court cannot enjoy.” State v.

Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). Appellate courts owe deference to the trial court’s credibility

determinations as well because it has “a better perspective than a reviewing

court in evaluating the veracity of a witness.” Gnall v. Gnall, 222 N.J. 414,

428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

SASPA authorizes an alleged victim of nonconsensual sexual contact

“who is not eligible for a restraining order as a 'victim of domestic violence’”

under the domestic violence statutes to seek a protective order in the Superior

16 Court. N.J.S.A. 2C:14-14(a)(1); L. 2015, c. 147, § 2 (eff. May 7, 2016).

SASPA is located within the Criminal Code in Chapter 14, which governs

sexual offenses, but SASPA is not a penal statute. Rather, SASPA offers relief

in the form of a civil protective order to alleged victims of nonconsensual

sexual contact. N.J.S.A. 2C:14-14.

SASPA provides that

[a]ny person alleging to be a victim of nonconsensual
sexual contact, sexual penetration, or lewdness, or any
attempt at such conduct, and who is not eligible for a
restraining order as a “victim of domestic violence” as
defined by the provisions of subsection d. of section 3
of L. 1991, c. 261 ([ N.J.S.A.] 2C:25-19), may, except
as provided in subsection (b) of this section, file an
application with the Superior Court pursuant to the
Rules of Court alleging the commission of such conduct
or attempted conduct and seeking a temporary
protective order.

[N.J.S.A. 2C:14-14(a)(1).]

Significantly, a person may apply for, and the court may issue, a

protective order under SASPA “regardless of whether criminal charges based

on the incident were filed and regardless of the disposition of any such

charges.” N.J.S.A. 2C:14-14(c)(1). A Superior Court judge may grant a

temporary protective order and “any relief necessary to protect the safety and

well-being of an alleged victim.” N.J.S.A. 2C:14-15(a); see also id. at (e)(6).

17
A temporary protective order is “immediately appealable for a plenary hearing

de novo not on the record.” N.J.S.A. 2C:14-15(d).

Upon an application for a final protective order, the Superior Court must

hold a hearing within ten days. N.J.S.A. 2C:14-16(a). At the hearing, the

applicant must prove the allegations by a preponderance of the evidence. Ibid.

SASPA provides that

[t]he court shall consider but not be limited to the
following factors:

(1) the occurrence of one or more acts of
nonconsensual sexual contact, sexual
penetration, or lewdness, or any attempt at such
conduct, against the alleged victim; and

(2) the possibility of future risk to the safety or
well-being of the alleged victim.

[Ibid.]

Those two factors are commonly referred to as the two “prongs” of SASPA.

A court may issue a final protective order only “after a finding or an

admission is made that the respondent committed an act of nonconsensual

sexual contact, sexual penetration, or lewdness, or any attempt at such

conduct, against the alleged victim.” N.J.S.A. 2C:14-16(e). Pursuant to

N.J.S.A. 2C:14-16(b), a court “shall not deny” a final protective order on the

basis of

18
the applicant’s or alleged victim’s failure to report the
incident to law enforcement; the alleged victim’s or the
respondent’s alleged intoxication; whether the alleged
victim did or did not leave the premises to avoid
nonconsensual sexual contact, sexual penetration, or
lewdness, or an attempt at such conduct; or the absence
of signs of physical injury to the alleged victim.

A final protective order remains in effect until further order of the Superior

Court, and either party may petition the court to dissolve or modify a final

order. N.J.S.A. 2C:14-16(i).

Although nonconsensual sexual contact forms the basis of a SASPA

claim, the statute does not define “consent” or establish guideposts for

determining when the sexual activity at issue is nonconsensual. In 1992,

however, this Court issued M.T.S., a landmark decision that established

affirmative consent as the standard in sexual assault cases. See 129 N.J. 422.

In M.T.S., the defendant, who was seventeen at the time, sexually penetrated a

fifteen-year-old girl without her permission. Id. at 425, 428. The trial court

found the defendant delinquent of second-degree sexual assault, but the

Appellate Division reversed because there was no evidence that the defendant

used any force beyond that necessary to accomplish penetration. Id. at 428-30.

On appeal, this Court conducted an extensive examination of the history

of rape laws throughout the country, particularly the stigma that has

19
historically been attached to alleged victims. Id. at 431-33. The Court

detailed the history of mistrust of victim testimony and of “assuming that

women lie about their lack of consent for various reasons: to blackmail men,

to explain the discovery of a consensual affair, or because of psychological

illness.” Id. at 433 (quoting Cynthia Ann Wicktom, Note, Focusing on the

Offender’s Forceful Conduct: A Proposal for the Redefinition of Rape Laws,

56 Geo. Wash. L. Rev. 399, 401 (1988)). This Court explained how a showing

of resistance eventually became the standard in many jurisdictions for

determining consent, with courts assuming that “any woman who was forced

to have intercourse against her will necessarily would resist to the extent of her

ability.” Ibid. Indeed, this Court concluded it was clear that “the law put the

rape victim on trial.” Id. at 434.

In an effort to eliminate the burden victims bore of showing non-

consent, the Court determined that the better standard was to look at whether

permission to engage in sexual activity was freely and affirmatively given. Id.

at 444. In reversing the Appellate Division, the M.T.S. Court held

that any act of sexual penetration engaged in by the
defendant without the affirmative and freely-given
permission of the victim to the specific act of
penetration constitutes the offense of sexual assault.
Therefore, physical force in excess of that inherent in
the act of sexual penetration is not required for such
penetration to be unlawful.

20
[Ibid.]

The Court clarified that “permission may be inferred either from acts or

statements reasonably viewed in light of the surrounding circumstances,” and

that “[p]ermission is demonstrated when the evidence, in whatever form, is

sufficient to demonstrate that a reasonable person would have believed that the

alleged victim had affirmatively and freely given authorization to the act.” Id.

at 444-45. Further,

neither the alleged victim’s subjective state of mind nor
the reasonableness of the alleged victim’s actions can
be deemed relevant to the offense. The alleged victim
may be questioned about what he or she did or said only
to determine whether the defendant was reasonable in
believing that affirmative permission had been freely
given. To repeat, the law places no burden on the
alleged victim to have expressed non-consent or to have
denied permission, and no inquiry is made into what he
or she thought or desired or why he or she did not resist
or protest.

[Id. at 448.]

In 2020, almost 30 years after the M.T.S. decision, the Legislature

amended the criminal sexual assault statute for the specific purpose of

reflecting the holding of M.T.S. See N.J.S.A. 2C:14-2. As noted in the

Statement to the amendment,

This bill replaces the term “physical force” in
accordance with the New Jersey Supreme Court’s
holding in State in Interest of M.T.S., 129 N.J. 422
(1992), which holds that the only requirement for a
21
conviction under the sexual assault statute is proof
beyond a reasonable doubt that there was sexual
penetration and that it was accomplished without the
affirmative and freely-given permission of the victim.

[S. Law & Pub. Safety Comm. Statement to A. 2767
(Sept. 27, 2018).]

The revision was intended to make the statute “consistent with current relevant

case law” and “incorporat[e] [M.T.S.’s] holding into the statute” by clarifying

that “the only requirement for a conviction under the sexual assault statute is

proof beyond a reasonable doubt that there was sexual penetration and that it

was accomplished without the affirmative and freely-given permission of the

victim.” Ibid. The Legislature further acknowledged that “since the M.T.S.

decision, courts that consider sexual assault cases need to use both the statute

and the court decision to determine the elements necessary for conviction.”

Ibid. The statute was amended so that all references to “physical force” were

removed and replaced with references to the standard adopted in M.T.S.

regarding the “victim’s affirmative and freely-given permission.” See L. 2019,

c. 474.

So, although the Legislature in enacting SASPA in 2015 made no

mention of how courts were to go about determining whether the sexual

activity in question was nonconsensual, the Legislature was certainly aware of

the M.T.S. holding and that courts had been applying the decision’s

22
affirmative consent standard in cases involving alleged nonconsensual sexual

activity in the decades since that case was decided.

As noted above, the Appellate Division adopted the prostration of

faculties standard for deciphering whether an alleged victim was too

intoxicated to consent to sexual activity under SASPA. C.R., 461 N.J. Super.

at 352-53.

We have long applied the “prostration of faculties” standard to establish

whether a criminal defendant was too intoxicated to form the requisite mens

rea for a charged offense. See, e.g., Cameron, 104 N.J. at 53-54 (noting that

“the requirement of 'prostration of faculties’ as the minimum requirement for

an intoxication defense” is “firmly fixed in our case law”); State v. Treficanto,

106 N.J.L. 344, 352 (E. & A. 1929). When the Criminal Code was enacted in

1979, it reflected the notion that self-induced intoxication is not a defense

unless it negates an element of the offense -- specifically, conduct that is

purposeful or knowing. Cameron, 104 N.J. at 51, 58. That is still the law

today. N.J.S.A. 2C:2-8(a), (b).

The Cameron Court stated that “[i]n order to satisfy the statutory

condition that to qualify as a defense intoxication must negative an element of

the offense, the intoxication must be of an extremely high level.” 104 N.J. at

23
54. This Court has identified six factors that help determine whether a

criminal defendant’s voluntary intoxication rises to the level of “prostration of

faculties,” including the quantity of intoxicant consumed, the time period, and

the actor’s conduct as perceived by others, among other things. State v.

Mauricio, 117 N.J. 402, 419 (1990) (quoting Cameron, 104 N.J. at 56).

Overall, for a criminal defendant to invoke a prostration of faculties standard,

it must be clear that the defendant “did not know what she was doing or that

her faculties were so beclouded by the [alcohol] that she was incapable of

engaging in purposeful conduct.” Cameron, 104 N.J. at 57.

IV.

In reviewing those principles and the history of sexual assault

jurisprudence in New Jersey, we hold that the affirmative consent standard

articulated in M.T.S. is the correct standard to be applied in determining

whether sexual activity was nonconsensual under SASPA.

In its holding, the Appellate Division found no reason not to apply the

prostration of faculties standard, under which an alleged victim would have to

bear the high burden of establishing that she was too intoxicated to consent.

C.R., 461 N.J. Super. at 350-51. We disagree.

Under our statutes and case law, the standard for consent applicable to

an alleged victim and the standard for an intoxication defense applicable to an

24
accused criminal defendant are different. Given the history of sexual assault in

the law, as painstakingly detailed in M.T.S., a holding that alleged victims of

sexual assault seeking a protective order should be held to the same standard

as criminal defendants seeking to assert a defense would, quite frankly, set our

law back decades to a time when alleged victims were the ones essentially put

on trial. Applying the prostration of faculties standard in determining whether

sexual activity was consensual is simply inconsistent with the standard set

forth in M.T.S.

The Appellate Division and the trial court’s heavy reliance on the

criminal sexual assault statute, N.J.S.A. 2C:14-2, is misplaced. SASPA does

not reference or incorporate the criminal statute at all. The Appellate Division

conducted an extensive analysis of the provisions of the sexual assault statute

that criminalize penetration of a victim whom the perpetrator knew or should

have known was “mentally incapacitated” in determining that the prostration

of faculties was the appropriate standard. C.R., 461 N.J. Super. at 347-49.

But although SASPA is contained within the same chapter of the Code,

SASPA makes no reference to the criminal statute and never once uses the

term “mentally incapacitated” to describe nonconsensual sexual conduct. It is

unlikely that the Legislature intended to incorporate the language of the

criminal statute into SASPA, given the fact that it made no attempt to do so in

25
drafting the plain language of the statute. And, as the recent revision to the

sexual assault statute reveals, the Legislature was aware of the M.T.S.

standard.

The language of N.J.S.A. 2C:14-16(b), further, is consistent with

applying the standard set forth in M.T.S. In -16(b), the Legislature outlined

several factors that courts were not permitted to use in denying relief under

SASPA, including the alleged victim’s or defendant’s alleged intoxication.

Indeed, with N.J.S.A. 2C:14-16(b), it appears that the Legislature certainly did

not envision an alleged victim’s intoxication to serve as a hurdle in seeking a

protective order. The additional clauses in -16(b) -- which prohibit denying

relief based on a victim remaining in the location where the unwanted contact

occurred or the absence of signs of physical injury -- further support that

interpretation. Like the proscription against considering intoxication, the

prohibition of those additional outmoded considerations helps free the statute

of the vestiges of a time when victims were presumed to lie about their lack of

consent, were required to show that they had resisted to their utmost ability,

and were required to “disclose the injury immediately, suffer signs of injury,

and cry out for help” in order to be considered credible. See M.T.S., 129 N.J.

at 433. The language in -16(b) undermines any notion that the Legislature

26
intended alleged victims of sexual assault to be put on trial with the prostration

of faculties standard, just as criminal defendants.

In 2021, we cannot and should not go back in time to a period when it

was the norm to shame, blame, and prosecute victims. The prostration of

faculties standard is and has only ever been applied to alleged criminals

seeking to evade culpability by showing that they could not have formed the

requisite mens rea for the offense charged. That concept has no place in our

jurisprudence as applied to alleged victims of sexual assault seeking a

protective order. We therefore remand the matter to the trial court for

reconsideration of the final restraining order and whether the sexual activity

was consensual or nonconsensual utilizing the M.T.S. affirmative consent

standard.

Although the Appellate Division did not address the second prong of

SASPA, we discuss it briefly because our remand encompasses a

reconsideration of that prong as well. The second prong of SASPA requires

the court to determine whether there is a “possibility of future risk to the safety

or well-being of the alleged victim.” N.J.S.A. 2C:14-16(a)(2). The trial court,

after conducting a detailed analysis on prong one, quickly found that prong

two was satisfied. The trial court first noted that there was “no evidence that

27
[defendant] sought to message or contact the plaintiff after their experience

together” and that “it is doubtful that [defendant] thought of these events as

anything more than as he testified a 'one night stand.’” The court then

determined, however, that because plaintiff initiated the restraining order

proceedings, defendant was “subjected to legal fees and may now harbor a

grudge against the plaintiff which would probably not have occurred but for

these proceedings,” so the court found that a restraining order was appropriate.

It cannot be that simply filing for a protective order is sufficient to create

“the possibility of future risk to the safety or well-being of the alleged victim”

noted in prong two. If that were so, prong two would be met in every single

SASPA case. That could not have been the Legislature’s intention.

Here, the factual findings that the trial court put on the record appear to

counter plaintiff’s establishing prong two of SASPA, and the trial court relied

on the simple fact that plaintiff had sought a restraining order to conclude that

“it is more likely than not that a final restraining order is appropriate” in this

case. We remand so that the trial court may expand upon its abbreviated

discussion of prong two and make additional findings of fact that support a

determination either that the prong has been satisfied, or not, in deciding

whether to issue the final restraining order.

28
VI.

The Appellate Division’s decision is reversed and the matter is

remanded to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-
LOUIS’s opinion.

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