Restraining Orders: Proving Intent to Harass

December 13, 2016

New Jersey Restraining Orders: Proving Intent to Harass

If you are the defendant in a restraining order case who is being charged with harassment, it is vital that you contact an experienced New Jersey restraining order attorney to discuss your case. The criminal charge of harassment is quite broad and nature and, as a result, is often alleged by the plaintiffs in restraining order contexts.

New Jersey case law, however, requires that the defendant have acted with an actual intent to harass in this context. Many times, the defendant’s alleged harassing conduct was not done with an actual intent to harass the plaintiff, but instead was done for some other reason. As such, the plaintiff’s failure to prove that the defendant acted with an intent to harass can be a winning defense in many of these cases.

Pursuant to the New Jersey domestic violence statute, in order for a party to obtain a Final Restraining Order, a “predicate act” of domestic violence must have been committed by the defendant, as defined by the statute. Harassment is one of those 14 acts that are defined as constituting domestic violence.

Under N.J.S.A. 2C:33-4, the following conduct constitutes harassment:

  1. With the purpose to harass another, the defendant makes or causes to be made a communication or communications in offensively coarse language, or at extremely inconvenient hours or anonymously, or any other manner likely to cause alarm and annoyance;
  2. With the purpose to harass, the defendant strikes, kicks, shoves or commits other offensive touching, or threatens to do so; or
  3. With the purpose to harass another, the defendant engages in “any other course of alarming conduct or of repeatedly committed acts” with the purpose to alarm or seriously annoy such other party.

While the conduct which rises to the level of harassment as defines by sections (a) and (b) above is relatively self-explanatory, subsection (c) contains a broad “catch-all” provision, defining harassment as “any other course of alarming conduct or of repeatedly committed acts.”  Due to its broad nature, virtually any sort of conduct might be classified as constituting harassment.

New Jersey case law, however, has thankfully shed some light on the harassment statute and has limited the types of conduct that would classify as harassment, at least to some degree.  In J.D. v. M.D.F., 207 N.J. 458 (2011), the New Jersey Supreme Court held that a violation of the harassment statute “require[s] . . . proof of a purpose to alarm or seriously annoy” and that the victim “be the target of harassing intent.”  Id. At 486.

Although a purpose to harass can be inferred from the history between the parties, such a finding must be supported by some evidence that the defendant’s conscious intent was to alarm or annoy.  In fact, mere awareness that the plaintiff might in fact be alarmed or annoyed is not enough.  In addition, the victim’s subjective reaction (such as their testimony that they actually were alarmed or annoyed) is not enough.  Instead, there must be actual evidence of an improper intent to harass or annoy on behalf of the defendant.  This is where many claims of harassment will fail.

For example, if out of anger or frustration, you punched a hole in a wall or destroyed other property, the plaintiff would most likely not be able to prove that your purpose in doing so was to harass the plaintiff.  See N.T.B. v. D.D.B.,442 N.J. Super. 205 (App. Div. 2015) (concluding that the defendant, in destroying a speaker “to stop the loud music” and breaking down a bedroom door “out of frustration” did not act with the intent to harass the plaintiff).

As another example, in Corrente v. Corrente, 281 N.J. Super. 243 (App.Div.1994), the court held that a husband, who was separated from his wife, did not commit harassment by calling her at her place of employment threatening drastic measures if she did not supply him with money to pay the family’s monthly bills. The court there concluded that there was no finding of an intent to harass with respect to the calls to the plaintiff at work, only that she felt alarmed by them.

The experienced restraining order attorneys at the Law Office of Randolph H. Wolf have successfully raised the intent defense in many restraining order cases alleging harassment, and, as a result, have been able to prevent the judge from granting a final restraining order.  If you have are the defendant in a restraining order case who is alleged to have harassed the plaintiff, contract the lawyers at the Law Office of Randolph H. Wolf today for a free consultation at 732-741-4448.  We will review your case to see what defenses you have for a charge of harassment.

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