WHAT IS THE SEXUAL ASSAULT SURVIVOR’S PROTECTION ACT?
The Sexual Assault Survivor Protection Act (SASPA) expands opportunities for survivors of sexual assault to apply for a protective order against the person who caused them harm, without reporting to law enforcement or filing criminal charges. SASPA was passed into law in November 2015 and was enacted in May 2016.
The vast majority of sexual violence survivors know the person who caused them harm. Before SASPA went into effect, protective orders weren’t available for sexual assault survivors unless there was a criminal charge or conviction.
WHAT IS A PROTECTIVE ORDER AND WHAT DOES IT DO?
A civil protective order issued under SASPA is a court order that protects survivors of sexual violence from the person who caused them harm. A protective order prohibits the person who caused harm from having any further contact with the survivor.
A protective order can shield survivors from:
- Further acts of sexual violence
- Seeing the person who caused harm (the person can be prevented from entering specific places that the survivor or their household members regularly frequent, such as work, home, or school)
- Future contact with the person who caused harm (whether oral, written, electronic communication, either directly from the perpetrator, or from the perpetrator via a third party)
- Stalking behaviors
- Harassment, including online harassment, of the survivor (if requested, can include the survivor’s family members, friends, or their employer/employees as protected parties in the protective order)
- Any other relief that the court deems appropriate
WHO CAN apply for A PROTECTIVE ORDER UNDER SASPA?
- Any survivor of a sexual offense, regardless of whether they knew the person who caused harm, can apply for this protective order. Sexual offenses covered under SASPA include any nonconsensual sexual contact, sexual penetration, lewdness, or any attempt of such behavior. Nonconsensual contact means the survivor did not agree or give permission for the person who caused harm to sexually touch, penetrate, or expose themselves.
- The parent or guardian of a survivor can apply on behalf of the survivor if the survivor is under the age of 18 or has a developmental disability.
- Survivors of sexual offenses who qualify for a domestic violence restraining order cannot apply for a protective order under SASPA.
- Survivors can apply for a civil protective order without reporting to law enforcement.
WHY MAY A SURVIVOR CHOOSE TO OBTAIN A PROTECTIVE ORDER?
Every survivor is different and will want a different outcome in the aftermath of an assault. For some survivors, a protective order will protect them by prohibiting contact from the person who caused harm, without needing to report the offense to law enforcement. Others may desire to both apply for a protective order and pursue criminal charges. Everyone’s situation is unique, and requesting a protective order is a decision only the survivor can make.
Trained advocates at New Jersey’s local sexual violence programs can provide resources, referrals, and support with navigating the legal system.
HOW DO SURVIVORS APPLY FOR A PROTECTIVE ORDER?
Due to the ongoing COVID-19 public health crisis, survivors no longer go to court in person to apply for a protective order. SASPA protective orders can now be applied for virtually. Please visit NJCASA’s COVID-19 resource page for more information on how to file for a protective order.
A survivor who is seeking a protective order under SASPA may file in family court, Monday through Friday, between the hours of 8:30 a.m. to 3:30 p.m.
Survivors can choose to file for a protective order in the county in which they reside, in the county where the sexual offense occurred, or in the county where the person who caused harm resides.
Survivors can find a list of family courthouses by county here.
Obtaining a Protective Order Is a Two-Step Process.
- The survivor must first apply for a temporary protective order (TPO) in family court. A TPOis the initial type of protective order that protects the survivor from the person who caused them harm and remains in place until the second step of the process.
- The second step requires a hearing, held within 10 days after the TPO has been issued, to determine if a Final Protective Order (FPO) can be permanently granted. FPOs never expire and are valid anywhere in New Jersey. The order may be enforced in New Jersey and can be enforced in all 50 states, Indian tribal lands, the District of Colombia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, American Samoa, the Northern Mariana Islands and Guam.
What can a survivor expect during the TPO Application Process?
After deciding to seek a protective order, survivors will complete a short application in family court. There are no court fees associated with receiving a TPO. The application requires the survivor provide their name and address along with the name and address of the person who caused harm to court staff, but the court will not require the survivor’s address to appear in writing on the temporary order of protection.
The survivor is then interviewed by a staff member from the Family Division of the court. During the interview, the survivor should provide as many details as possible of the sexual offense(s) and any other intimidating behavior, as well as explain how the incident made them feel.
Everything included in this statement can be brought up in the protective order hearing(s); anything not included cannot be referenced during testimony. The statement should be specific and comprehensively detail abusive or intimidating behaviors. Include actual language the perpetrator used.
EXAMPLE: Rather than saying, “He would do inappropriate things,” include details: “On three different occasions, when walking past me, he grabbed my buttocks. It made me feel uncomfortable and scared to go to work.”
Once the Family Division staff member drafts the survivor’s statement, it is important that the survivor reviews it to ensure it is reflective of everything they said, exactly as they said it, before signing it. The survivor will then provide oral testimony to a hearing officer or a judge regarding the offenses committed against them. The court may immediately grant the TPO, when necessary, to protect the safety and the well-being of the survivor. If the TPO is granted, the hearing officer or judge will outline the behaviors that the person who caused harm will be prohibited from committing.
Initial TPO hearings do not require the defendant (the person who caused harm, and the person the TPO is against) to be present. The TPO is not in effect until the defendant is served. During the filing, it is critical to provide as much information about the defendant’s whereabouts as possible, so law enforcement can serve the defendant quickly after the TPO is granted.
Be prepared. The TPO application process might take several hours, but if granted, the survivor will leave with their TPO the same day along with the date for the final hearing. The TPO remains in effect until the final protective order hearing, which is typically held within 10 days following the issuance of the TPO.
What can a survivor expect After obtaining the tpo?
The court will forward the TPO to law enforcement so they can personally serve the TPO to the person who caused harm and outline the behaviors they are prohibited from committing. Law enforcement will inform the person who caused harm that any violation is a criminal offense and may lead to arrest. If the person who caused harm violates the TPO, the survivor may contact law enforcement to have the order enforced. While the TPO is a civil order, it is important to know that reporting any violations might lead to an arrest and criminal charges.
CREATE A SAFETY PLAN: While a protective order will discourage the person who caused harm from committing any further sexual offenses, it is important to take other precautions to ensure the survivor’s safety.
Safety planning involves thinking of different ways to stay safe, considering the survivor’s options, and making decisions regarding the survivor’s next steps. Seeking support from trusted family members and friends, changing one’s day-to-day travel routine, and not posting location information to social media are examples of safety planning.
If the survivor feels they are in immediate danger, contact local law enforcement.
Survivors can contact their local sexual violence program for comprehensive safety planning, options to change residences, additional information to prepare for the FPO hearing, resources, counseling, court accompaniment, and emotional support.
SURVIVORS ARE ENTITLED TO KNOW ABOUT THEIR LEGAL RIGHTS AND OPTIONS
While a lawyer is not necessary to seek a TPO or FPO, it may be helpful to speak to one or to contact an advocate from a sexual violence program to obtain free information on legal right and referrals and obtaining compensation from the Victims of Crime Compensation Office. While an advocate cannot provide legal advice, they can guide the survivor through the TPO/FPO process and offer helpful resources for other needs the survivor may have.
It is helpful for the survivor to gather any evidence of the sexual offense(s), such as photos, texts, and screenshots, in preparation for the FPO hearing. It is also important for the survivor to request any direct witnesses be present to provide testimony on the date of the FPO hearing. The direct witness should be able to provide first-person accounts of the defendant’s inappropriate behavior and should be available to testify to that at the FPO hearing.
Protective order hearings can be stressful. Every person has the right to practice self-care and make decisions that are best for their well-being. Trained advocates at New Jersey’s local sexual violence programs can offer comprehensive safety planning, legal rights and options, shelter options, resources, counseling, court accompaniment and emotional support.
Survivors can seek a civil protective order even if the assault was not reported to law enforcement.
WHAT Can a survivor expect at the FPO HEARING?
The hearing for the FPO also takes place in family court, in front of a judge, within 10 days after the TPO hearing. The defendant is expected to appear for this hearing but should not have any contact with the survivor. If the defendant attempts to speak with the survivor, the survivor can immediately report the incident to a sheriff officer. If reported, this may be considered a violation and may lead to an arrest or criminal charges.
Some considerations for preparing for the FPO hearing include:
- If translation services are needed, contact the family court several days in advance of the final hearing so they can assign a court-approved interpreter.
- An advocate can be supportive in preparing for this process, as well as obtaining legal advice from your local legal services program.
- A survivor does not need to obtain an attorney for the FPO hearing but if they opt to hire a private attorney, they may be eligible for compensation for attorney fees through the Victim of Crime Compensation Office. To obtain information on eligibility for compensation please visit the Victims of Crime Compensation Office website or call 877-658-2221.
On the date of the FPO hearing, after arriving to family court, the survivor should check in with the sheriff officer of the courtroom assigned to the hearing. The officer might ask if the survivor is ready to proceed with the hearing. It is important to know that both the survivor (plaintiff) and/or the person who caused harm (defendant) have the right to request an adjournment (postponement) at the initial FPO hearing if they need additional time to seek legal advice, to bring in evidence, or so that their witness can appear. The survivor should inform the sheriff officer when they check in if they plan on requesting an adjournment. If the adjournment granted, all the protections of the TPO remain in place.
During the FPO hearing the judge will provide instructions on how the hearing will proceed and explain the two legal elements they consider for granting the FPO:
- The sexual offense committed, and
- The possibility of future risk to the survivor’s safety or well-being.
The judge will explain that the survivor will need to prove these elements beyond a preponderance of evidence. A preponderance of evidence standard means that the judge must find that the offenses were more likely than not to have occurred.
The survivor will testify first and will be expected to testify with the person who caused harm present. If the survivor has an attorney, the attorney will ask the survivor questions. During the survivor’s testimony is when any evidence/witnesses should be presented, if applicable. After the survivor testifies, the defendant will have the opportunity to cross-examine or ask questions of the survivor. The defendant is not permitted to address or speak to the survivor, so they must direct questions to the judge. The judge will then ask the survivor the questions directly. If the defendant has an attorney, the attorney will ask the survivor questions directly.
The judge may ask some difficult questions, such as who the survivor reported the assault to or why the survivor didn’t choose to report the assault to law enforcement.
The defendant will then testify. If the survivor has an attorney, they will have the opportunity to cross-examine or ask the person who caused harm questions. If the survivor does not have an attorney, the survivor will ask the judge the questions, then the judge will ask the person who caused harm.
The judge then makes a decision on whether or not to grant the FPO and will provide the reasoning behind the decision.
WHAT HAPPENS IF A FINAL PROTECTIVE ORDER IS GRANTED?
The judge will specifically outline the details of the final protective order. This could include who the defendant is barred from contacting, and behaviors that are prohibited.
The final protective order is effective immediately after the hearing. If the person who caused harm is absent from the hearing, the judge may choose to issue the order without them present.
Any violation of the FPO is a criminal act and might result in criminal charges and an arrest if reported to law enforcement.
WHAT HAPPENS IF A FINAL PROTECTIVE ORDER IS NOT GRANTED?
If the final order is not granted, the temporary protective order along with all of the protections are dismissed without prejudice. This means that if the person who caused harm commits a new act of sexual violence against the survivor, the survivor has a right to file a new TPO; a past dismissal of a protective order will not be disqualifying in seeking one in the future.
For assistance with any additional questions please contact your local sexual violence program.