OF C R V M.T., CAN WE PLEASE HAVE APPEARANCES OF COUNSEL,.
(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: GOOD MORNING,
COUNSEL, WELCOME TO ALL. MISS VAST, PLEASE FWOE AHEAD.
LEAH A. VASSALLO: THANK YOU. PLEASE ALLOW ME TO RESERVE A FEW MINUTES
FOR REBUTTAL. THE COURT: YES. LEAH A.
VASSALLO: GOOD MORNING, MAY IT PLEASE THE COURT, THIS COURT IS ASKED TO CONSIDER
A SENG L ISSUE TODAY, SPECIFICALLY WHETHER THE FACTS ON THE RECORD SUPPORT
THE DETERMINATION OF TRIAL COURT AN THE APPELLATE COURT THAT SASPA PRONG 2 HAS BEEN
MET IN THIS CASE AN WE BELIEVE THAT IT HAS NOT BEEN MET AN WE'RE ASKING
THE COURT TO REVERSE THIS DECISION IN THE APPELLATE COURT. THE
SECOND PRONG OF N.J.S.A. 2C:14-16 A REQUIRES THE COURT'S DETERMINING THE GRANTING
OF A FINAL RESTRAINING ORDER UNDER SASPA TO CONSIDER THE POSSIBILITY OF
FUTURE RISK TO THE SAFETY OR WELL BEING OF THE ALLEGED VICTIM. THIS
COURT IS ALSO LIKELY AWARE THAT THE FIRST TIME THIS CASE WAS BEFORE THE NEW JERSEY
SUPREME COURT, THE CASE WAS REMANDED AND THIS COURT HELD THAT IT CANNOT BE
SIMPLY FILING FOR A PROTECTIVE ORDER IS SUFFICIENT TO SATISFY PRONG 2 OR IT WOULD BE
MET IN EVERY SINGLE SASPA CASE. THIS COURT FRT HELD THAT THE
INITIALLY TRIAL COURT'S FAK YOU'LL FIENDINGS APPEARED TO COUNTER
PLAINTIFF'S ESTABLISHING PRONG 2. THIS COURT THEN REMANDED THE MATTER
SO THE TRIAL COURT COULD EX SPANT ON THE DISCUSSION OF PRONG 2 AND MAKE
ADDITIONAL FINDINGS OF FACT. WHEN THE CASE WENT BACK TO THE TRIAL COURT
IT WENT BACK TO A DIFFERENT JUDGE THAN THE ONE WHO HAD ORIGINALLY HEARD
THE CASE SO THE JUDGE, WHO WAS THE NEW JUDGE ALLOWED DEGS NATURAL TESTIMONY FROM
C R, RELATED TO SATISFYING PRONG 2, BUT SHE DID NOT PROVIDE ANY NEW FACTS
THAT WEREN'T REALLY THE SAME AS WHAT WAS PROVIDED IN THE ORIGINAL HEARING OTHER THAN
THE AMOUNT OF TIME THAT HAD PASSED BETWEEN THE TWO AND HER CONTINUED THERAPY.
SO, SPECIFICALLY, C.R. TESTIFIED THAT SHE NEEDED THE
RESTRAINING ORDER BECAUSE SHE FEARS THAT M.T. WILL BE ANGRY THAT SHE HAS SPENT THREE
YEARS ASKING FOR THIS. AND THOSE WERE HER WORDS DURING TESTIMONY
IN THE SECOND HEARING AND THIS IS AN ISSUE THAT THE COURTS ALREADY OFFERED
AN OPINION ON THAT THIS IS NOT A VALID BASIS FOR A RESTRAINING ORDER, FEAR OF THE
EFFECT OF HAVING APPLIED FOR A RESTRAINING ORDER SO SHE TESTIFIED THAT SHE WAS
AFRAID THAT M.T. WOULD HARASS HER FOR I THINK THE WORD SHE USED FOR CHALLENGING
IT, BUT, YOU KNOW, IT IS RELATED TO HER ASKING FOR THE RESTRAINING ORDER
AND FILING THE APPEALS AN RESPONDING TO THE APPEALS THAT HE FILED AND SHE IS AFRAID
THAT IF SHE RUNS INTO HIM AND SOMETHING HAPPENS WITHOUT A PROTECTION I HAVE
ORDER, THERE WOULD BE NO CONSEQUENCES AND THIS IS FALSE. FIRST OF
ALL, THERE IS NO BASIS TO BELIEVE THAT THEY WOULD RUN INTO EACH OTHER OR THAT IF
THEY DID BY SOME ODD CHANCE THAT ANYTHING WOULD HAPPEN, BUT IT IS ALSO,
TO SAY THAT THERE ARE NO CONSEQUENCES IF SOMETHING HAPPENS, ANY CRIMINAL
HARASSMENT IS ABSOLUTELY SUBJECT TO PENALTIES. IT IS JUST
SOMEONE'S THOUGHTS, THERE IS NO BASIS WHATSOEVER IN THE RECORD TO SHOW THAT THERE
IS ANY RISK OF ANY OF THIS HAPPENING. ADDITIONALLY, THERE WAS
NEVER ANY TESTIMONY THAT M.T. BEHAVED IN ANY WAY IN A HARASSING MANNER OR
THREATENING C.R. OR VAEN ONE FOR THE MATTER IN EITHER HEARING. AT
THE SECOND HEARING, C.R. WAS SPECIFICALLY ASKED WHETHER OR NOT M.T. HAD ACTED VIOLATE
LY TOWARDS HER FROM THE INITIAL ORDERS TATD AN THERE WAS NO TESTIMONY THAT
HE HAD OR THAT HE HAD ANY CONTACT WITH HER. IN FACT, A PERIOD
OF A FEW DAYS PAST BETWEEN THE EVENING OF THEIR EXPERIENCE TOGETHER AND WHEN SHE
ACTUALLY FILED FOR THE RESTRAINING ORDER AND THERE WAS NO COMMUNICATION
BETWEEN THE TWO OF THEM. SHE WAS STILL IN HIS HOUSE WHEN HE LEFT FOR WORK THE
FOLLOWING MORNING AND THERE WAS NO COMMUNICATION BETWEEN THE TWO OF THEM.
SO, THERE IS NOTHING AT ALL TO INDICATE THAT HE HAS EVER HAD A
CRIMINAL RECORD, DONE ANYTHING VIAL LENTD, DONE ANYTHING THREATENING AND SPECIFICALLY
TOWARDS HER THERE IS NOTHING TO SHOW THAT THERE IS ANY RISK.
NOW, MY ADVERSARIES HAVE ARGUED THAT SASPA REQUIRES LESS SHOWING FOR THE SECOND
PRONG THAN PROSECUTOR'S FILE PVD PVD BUT THE SECOND PRONG WAS PLACED THERE
BY THE LEGITIMATE YOUR FOR A REREASON, SOMEONE TAKING A RESTRAINING ORDER AND SAYING
THEY NEED IT FOR THEIR WELL BEING WITHOUT ANY ADDITIONAL PROVES CANNOT SATISFY
THE SECOND PRONG. THIS GOES BACK TO THE FERS TIME WE CAME WITH
THIS CASE WHICH IS EVERYBODY WHO APPLIES FOR A RESTRAINING ORDER WOULD WANT IT BECAUSE
IT GIVES THEM SOME BENEFIT, PSYCHOLOGICAL BENEFIT. IT BENEFITS THEIR WELL
BEING SO TO SAY SPECIFICALLY THAT SOMEONE SAYS THAT HAVING A RESTRAINING ORDER
WILL BENEFIT THEIR WELL BEING IS JUST ANOTHER WAY OF SAYING THAT THIS PRONG IS
MET IN EVERY SINGLE SASPA CASE. CHIEF JUSTICE RABNER: MRIZ
VAST, YOU FOCUSED ON RISK OF SAFETY FOR THE MOST PART IN YOUR PRESENTATION
AN YOUR EARLY STATEMENT. DOES THE SECOND PRONG COVER EMOTIONAL AN
MENTAL HARM, AS WELL? LEAH A. VASSALLO: I THINK IT COULD
ENCOMPASS EMOTIONAL HARM AUSED BY A FUTURE AK OF M.T., CAUSED BY A FUTURE
ACT OF M.T., BUT I DON'T THINK IT SHOULD COVER SIMPLY THE STATEMENT THAT WITHOUT
THE RESTRAINING ORDER MY WELL BEING WILL BE AFFECTED NEGATIVELY. I THINK
THERE HAS TO BE SOMETHING MORE THAN THAT. CHIEF JUSTICE RABNER:
SO THE TEXT, THE STATUTE REFERS TO WELL BEING, THERE IS A BROAD TERM.
WHAT DOES THAT ENCOMPASS? LEAH A. VASSALLO: WELL, I HAVE LOOKED,
AS EVERYONE ELSE HAS, FOR LEGISLATIVE INTENT AN FOUND NOTHING COMPELLING
TO INDICATE LEGISLATIVE INTENT AND FOR A GOOD DEFINITION OF IT IN THE STATUTE.
SO IF WE'RE LOOKING AT THE PLAIN MEANING OF THE WORD I BELIEVE WHAT IS
PRETTY CONSENTLY USED HAS BEEN BASICLY WELL BEING WITH EITHER STATUS OF THEIR HAPPINESS,
HEALTH OR PROSPERITY. JUSTICE FASCIALE: MS. VASSALLO, I
WANT TO PICK UP ON YOUR POINT ABOUT WHY DO THE LEGISLATURE INCLUDE IN 1416
A FINAL PROTECTIVE ORDER JUDGES MUST CONSIDER THE POSSIBILITY OF THE FUTURE TO
THE SAFETY OF THE ALLEGED WELL BEING OF THE VICTIM. WE KNOW THIS IS NOT
THE FIRST TIME THE LEGISLATURE DIRECTED RESTRAINING ORDERS UNDER THE
PREVENTION OF DOMESTIC VIOLENCE ACT. TO CONSIDER BUT NOT LIMIT IT TO CERTAIN FACTORS,
AND THEN FOR THE P V DA, THE F R O JUDGES, APPLICANTS THAT ARE SIX FACTORS,
WE KNOW UN SILVER THAT WHEN CONSIDERING WHETHER THERE WAS AN ACT OF DOMESTIC
VIOLENCE, THE F R O JUDGE SHOULD FIND TWO OF THE SIX FACTORS NOT ALL OF THE SIX
FACTORS BUT TWO OF THE SIX FACTORS AN AFTER THE FINDING OF THE DOMESTIC VIOLENCE
UNDER THE P V DA ACT HAS BEEN MADE THE JUDGE THEN CONSIDERS WHETHER IT IS
NECESSARY TO PROTECT FROM IMMEDIATE DANGER TO PREVENT FUTURE ABUSE BY CONSIDERING
ALL SIX FACTORS. NOW, MY QUESTION PERTAINS DIRECTLY TO THE
APPLICABILITY OF THE SECOND FACTOR UNDER SASPA, OF COURSE THE ONE THAT BRINGS US
ALL HERE TODAY, BUT IF YOU TAKE IT FROM A PRACTICAL PERSPECTIVE, WHEN A VICTIM
BROOEFS THEY ARE ENTITLED TO RELIEF UNDER THE -- UNDER SASPA, THEY CAN MAKE
AN APPLICATION FOR TEMPORARY PROTECTIVE ORDER. THE FROUNDZ
FOR A TEMPORARY PROTECTIVE ORDER THAT A JUDGE CAN CONSIDER INCLUDE, FIRST, THE
JUDGE MAY ENTER THE TEMPORARY PROTECTIVE ORDER WHEN IT IS NECESSARY FOR
THE SAFETY AND WELL BEING OF THE VICTIM, OR TEMPORARY PROTECTIVE BLANK JUDGE MUST
ISSUE A TEMPORARY RESTRAINING ORDER IF THAT JUDGE CONCLUDES THAT THE
APPLICANT IS A VICTIM. BOTH WAYS PROTECT I TEMPORARY ORDER ISSUES
THE TEMPORARY PROTECTIVE ORDER AND SCHEDULES A FINAL PROTECTIVE ORDER
HEARING. MY QUESTION IS THIS, SECTION E OF THE STATUTE SPECIFICALLY
SAYS THAT A FINAL PROTECTIVE ORDER PURSUANT TO THIS BLANK SHALL BE ISSUED ONLY
AFTER A FINAL OR ADMISSION IS MADE THAT THE INDIVIDUAL POTENTIALLY COMMITTED
THE BLANK. IT DOESN'T SAY THAT A FINAL PROTECTIVE ORDER SHALL BE ISSUED ONLY AFTER
A FINDING OF THE PRESENT ACT WAS MADE AND AFTER A DETERMINATION HAS BEEN
MADE THAT THE PROTECTIVE ORDER IS NECESSARY TO PROTECT THE VICTIM.
IN FACT, ONES THE PROTECT ORDER JUDGE MAKES THE DETERMINATION THAT THE ACT
OCCURS, THAT SAME SECTION, SECTION E REQUIRES THE PROTECTION AUTOMATICALLY
GO INTO THE PROTECTIVE ORDER PREVENTING CONTACT. MY QUESTION IS THIS,
TWO QUESTIONS, NO. 1, HOW DO YOU RESPOND TO THE ARGUMENT THAT PARTNERS FOR
WOMEN AN JUSTICE MAKE IN PAGE 14 OF THE BRIEF THAT IF THE LEGISLATURE INTENDED THE
FINAL PROTECTIVE ORDER JUDGE TO OPINE ON THE CONDITION OF THE ORDER THE
POSSIBLE SIBLTH OF FUTURE RISK OR SAFETY OR WELL BEING THEY WOULD HAVE INCLUDED
THAT ALSO IN SECTION E. LEAH A. VASSALLO: WELL, MY ARGUMENT TO THAT
WOULD BE, IT'S A RELATIVELY BLANK AND IT HASN'T HAD A LOT OF TIME TO HAVE
THE DETAILS FLESHED OUT. FAB FASH I HATE TO INTERRUPT YOU. I AM SPECIFICALLY
TALKING ABOUT THE INTENT OF E, THE FINAL PROTECTIVE ORDER PURSUANT TO BRANG
SHALL BE ISSUED ONLY AFTER A FINDING OR AN ADMISSION IS MADE THAT THE RESPONDENT
COMMITTED THE PREDICATE BRANG AND THE JUDGE THEN FOR GROUNDS FOR THE TEMP
ORARY PROTECTIVE ORDER WHICH GIVES THAT JUDGE THE OPPORTUNITY TO CONSIDER WHETHER
THE TEMPORARY PROTECTIVE ORDER WOULD BE NECESSARY TO PROTECT THE SAFETY AN WELL
BEING OF THE VICTIM. I AM SPECIFICALLY ASKING, OBVIOUSLY, THE
LU KNOWS THAT THEY COULD HAVE REQUIRED IN E THAT THE FINAL PROTECTIVE ORDER
JUDGE NOT ONLY AS A PREREQUISITE TO ISSUING THE PROTECTIVE ORDER BY, BUT, ALSO,
THE JUDGE MUST MAKE A FINDING THAT THE ORDER WAS NECESSARY TO PROTECT THE
VICTIM. THEY NEVER DID THAT IN SECTION E. MY FIRST QUESTION OF TWO
IS: HOW DO YOU RESPOND TO THE ARGUMENT THAT PARTNERS FOR WOMEN
AND JUSTICE MAKE THAT EVEN IF THE PROTECTIVE ORDER JUDGE DOES NOT FIND THAT
THERE IS A POSSIBLE SIBLTH OF RISK OR SAFETY, THEY WOULD HAVE TO ISSUE A
PROTECTIVE ORDER ANYWAY BECAUSE SECTION E SAYS ASSUMING THEY COMPLY WITH THE PREDICATE
ACT THAT OCCURRED THE PROTECTIVE ACT MUST BE AN ISSUE. LEAH A.
VASSALLO: I UNFORTUNATELY DON'T HAVE THIS RIGHT IN FRONT OF ME, WHEN YOU SAY ONLY
AFTER, THAT'S RESTRICTING THEM FROM ISSUING A RESTRAINING ORDER IF THEY
DON'T FIND THE BLANK, BUT I DON'T THINK IT REQUIRES THEM SIMPLY BECAUSE THEY FOUND
THE PREDICATE ACT TO BE MET AN THERE IS A LITTLE BIT OF TRICKINESS WITH
THE WORD AND TAKING BLANK THE POSSIBILITY, BECAUSE A LOT OF TIMES THAT SECOND
PRONG IS TREATED AS IF YOU FIND A POSSIBILITY, IT IS MET, WELL, THERE IS ALWAYS
A POSSIBILITY SO YOU HAVE TO CONSIDER WHETHER THE, YOU KNOW, WHAT THE
POSSIBILITY IS AND YOU ALSO L CAN ONLY ISSUE IT AFTER THE PREDICATE ACT IS MET.
JUSTICE FASCIALE: HERE IS MY CONCERN. LEAH A.
VASSALLO: YES. JUSTICE FASCIALE: THE TWO FACTORS THAT APPEAR
IN SASPA ARE FACT BLANK. THE LEGISLATURE CALLED THEM PRONGS FACTORS, THE LEGISLATURE
DIDN'T CALL THEM PRONGS, THE LEGISLATURE CALLED THEM FACTORS, JUST LIKE THE
LEGISLATURE CALLED THEM 6 FACTORS ON THE PREVENTION OF WE KNOW THAT FACTOR 6 OF
THOSE FACTORS APPLIES TO THE DETERMINATION OF WHETHER A MET CONTACT OCCURRED.
SILVER SAYS THAT THE FROE JUDGE MOTION TO SUPPRESS CONSIDER
THE JUDGE IN LIGHT OF TWO OF THOSE SIX FACTORS, THERE ARE FACTORS, THEY ARE NOT
RIRLTS THAT MUST BE SATISFIED FOR EACH PRONG, SILVER CERTAINLY REQUIRES,
F R O JUDGES TO DETERMINE WHETHER A PREDICATE OCCURRED. BY
CONSIDERING THE FIRST THREE FACTORS, THE OTHER 4 FACTORS ARE NOT RELEVANT TO
DETERMINATION, THE SIX ARE RELEVANT TO DETERMINATION WHETHER THE FRO IS
NECESSARY. HERE, MY POINT IS THAT THESE ARE FACTORS TO CONSIDER WHETHER
DETERMINING WHETHER THE PREDICATE ACT UNDER SASPA OCCURRED AND IF E SAYS THE PREDICATE
ACT CURSE THE PROTECTIVE ORDER MUST BE ISSUED AND SHALL CONTAIN THE
PROTECTION, NO CONTACT, ETS. MY SECOND QUESTION IS:
THAT BASIC QUESTION OF WHY THE LEGISLATURE EVEN ADDS P O JUDGES TO CONSIDER THE
POSSIBILITY OF FUTURE RISK AND SAFETY AND WOEL BEING OF THE VICTIM.
I SUGGEST TO YOU THAT PERHAPS THEY REQUIRE THESE JUDGES TO CONSIDER SUCH A FACTOR
WHEN DETERMINING WHAT RELIEF SHOULD COMBOE INTO THE PROTECTIVE ORDER UNDER
SECTION F WHICH GIVES THE F P O JUDGE THE RIGHT TO PROVIDE ADDITIONAL PROTECTION
TO THE VICTIM BEYOND THE TWO REQUIREMENTS THAT APPEAR IN E. BY ELUDING TO OTHER
THINGS LIKE THE VICTIM SHOULD BE PROHIBITED FROM ENTERING THE
RESIDENCE, GOING TO THE PROPERTY WHERE THE PERSON LIVES OR GOING TO THE PLACE OF
EMPLOYMENT. SHE IS ARE ADDITIONAL REFUSE THAT THE VICTIM MAY BE ENTITLED TO
UPON CONSIDERATION OF THE POSSIBILITY OF FUTURE RISK OF SAFETY OR WELL BEING TO
THE VICTIM. SO, I PRESENT THAT SUGGESTION TO YOU FOR YOUR
RESPONSE AND, IN PARTICULAR, TO GET ON THE RECORD... LEAH A.
VASSALLO: WELL, AS FAR AS PRONGS 1 AND 2 GO, THIS ISSUE HAS BEEN BEFORE THIS COURT
BEFORE, WHICH HAS PREFERENCE REFRPSED SPECIFICALLY PRONG 1 AND PRONG 2.
IN FACT, LIKE, IF I PULL UP THE OPINION OF THIS COURT, THE
LAST TIME THIS CASE WENT BEFORE IT I, IT SPECIFICALLY SAID THEY CANNOT BE SIMPLY
FILING FOR A PROTECTIVE ORDER IS SUFFICIENT TO CREATE QUOTE, THE
POSSIBILITY OF FUTURE RISK AND THE SAFETY OR WELL BEING OF THE ALLEGED VICTIM, END
QUOTE, NOTED IN PRONG 2 SO THOSE ARE NOT MY WORDS, THEY ARE THIS COURT'S WORDS
AND IT GOES ON TO SAY THAT IF THAT WERE SO, PRONG 2 WOULD BE MET IN EVERY
SINGLE SASPA CASE. THAT COULD NOT HAVE BEEN THE LEGISLATURE'S INTENT.
JUSTICE FASCIALE: WELL, THEN, IF WE USE THE WORD PRONG WHEN WE TALK ABOUT
THE POSSIBILITY OF FUTURE RISK AND SAFETY AN WELL BEING OF THE ALLEGED VICTIM,
COULD IT STILL NOT BE RELEVANT SOLELY TO PROTECTION THAT THE VICTIM MAY
BE ENTITLED TO UNDER SECTION F, RATHER THAN A PREREQUISITE THAT THE PROTECTIVE
ORDER ONLY ISSUE UPON A FINDING THAT BECAUSE OF THE POSSIBILITY OF FUTURE
RISK THE PROTECTIVE ORDER IS NEEDED. LEAH A. VASSALLO: BASICLY IT IS
SAYING THAT NONE OF THE ESHS -- YOU CANNOT RECEIVE A FINAL RESTRAINING ORDER
UNLESS YOU FIND THE PREDICATE ACTS HAVE OCCURRED. IT DOESN'T LIMIT THOSE TWO AND
IT DOESN'T SPEKLY SAY THAT IT CAN ONLY BE ISSUED AFTER FINDING THAT THERE IS
A POSSIBILITY OF FUTURE HARM AND I THINK BECAUSE THERE IS NEVER A CASE WHERE THERE
ISN'T A POSSIBILITY OF FUTURE HARM SO SO IT WOULD BE A NONS SENSE SICK KAL
STATEMENT FOR THEM TO SAY THAT. NONSENSICAL STATEMENT FOR THEM TO SAY THAT.
JUSTICE FASCIALE: TOE SO THE STATEMENT THAT WAS MADE R PART
OF OUR DECISION TO HAVE THE JUDGE TO DO ANOTHER HEARING, THE MERE POSSIBILITY OF
FILING THE ORDER ITSELF CANNOT BE A BASIS FOR THE FINDING THAT THERE IS
A POSSIBILITY FOR THE FUTURE RISK OR SAFETY OR WELL BEING. THERE HAS TO BE SOME
EVIDENCE IN THE RECORD ON WHICH TO BASE SUCH A FINDING. LIKE,
IN THIS CASE, WHEN THE REMAND F P O JUDGE FOUND, SPECIFICALLY, THAT THE LOSS OF
SKEEP, INTIMACY ISSUES, TREATMENT WITH HER THEY ARE WIS, TRAUMA AND EMOTIONAL
STRESS, GO ALONG WITH THE PREDICATE ACT THAT LED TO THE ISSUANCE OF THE FINAL
PROTECTIVE ORDER ITSELF FOR THE BASIS IN THIS RECORD TO SUPPORT THE FINDING
THAT THE REMAND F P O JUDGE MADE. LEAH A. VASSALLO: WELL, IF YOU
LOOK AT THE -- I'M SORRY. JUSTICE FASCIALE: JUST TO FOLLOW
THAT TRUE, WITH THAT FIENDING THE FPO JUDGE CAN THEN GO TO SECTION F AN
INCLUDE IN THE FORM ORDER ALL OF STATUTE F 1, 2, 3, 4 AND EVEN 5 AND ADDITIONAL
FORM FOR RELIEF THAT WOULD APPEAR IN ORDER WOULD HAVE TO SHOW UP AS A RESULT OF
SUBSECTION E. LEAH A. VASSALLO: WELL, THERE IS A COUPLE
THINGS I WANT TO ADDRESS ABOUT WHAT YOU JUST BROUGHT UP. ONE
OF THEM IS IF YOU LOOK AT THE ACTUAL TRANSCRIPT, THE QUESTION ASKS TO C.R. THAT
SHE MADE THAT RESPONSE ABOUT SEEING THERAPISTS WAS: SO,
SINCE THIS TIME AND AFTER THIS EVENT OCCURRED, HOW HAS BEEN YOUR WELL BEING WAS
THE EXACT QUESTION ASKED. SO, THE ATTORNEY WAS ASKING HER BETWEEN
THE NIGHT OF THEIR ENCOUNTER AND THE TIME THE REMAND HEARING WAS HELD MORE THAN
THREE YEARS LATER, HOW HAD HER WELL BEING BEEN AFFECTED. HE WAS NOT ASKING HER
TO LOOK INTO THE FUTURE. I THINK YOU CAN MAKE SOME ASSUMPTIONS ABOUT THE
FUTURE WOEL BEING AN I THINK THE JUDGE DID, BUT SHE WAS ACTUALLY RESPONDING TO
A QUESTION OF, OVER THE LAST THREE YEARS, HOW HAS THIS AFFECTED YOU.
AND THEN HE WENT ON TO ASK HIS SECOND QUESTION, WHICH IS, IN MY OPINION MORE
RELEVANT TO THE ISSUE AT HAND AND HE SAID BESIDES THE WELL BEING THAT YOU
JUST EXPLAINED, IF THERE WERE, AN THEN THERE WAS AN INAUDIBLE RECORDING ISSUE AN
THEN HE ASKED DO YOU FEAR FOR YOUR SAFETY AN THE POSSIBILITY OF HARM FROM THIS
DEFENDANT AN SHE SPECIFICALLY SAID, I DO. REALLY I DO, I THINK THE ONLY
REASON I HAVE ANY SORT OF PASTE OF MIND IS BECAUSE OF KNOW I HAVE THIS TEMPORARY
RIGHT NOW AND I AM SO TERRIFIED THAT IF I DIDN'T HAVE IT HE WOULD BE ANGRY
THAT I SPENT THREE YEARS JUST ASKING FOR THIS, JUST ASKING FOR A SENSE OF SECURITY,
I THINK HE WOULD DEFINITELY HAR HARASS ME FOR CHALLENGING IT. I FEEL LIKE
EVERY TIME, I CAN'T EVEN BEGIN TO EXPLAIN THE FEAR I FEEL EVERYDAY WHEN I AM UNSURE
OF MY SURROUNDINGS. THAT'S HER COMPLETE ANSWER. SO WHAT SHE IS
SAYING IS THE SAME THING THAT JUDGE SIG SAID IN THE ORIGINAL HEARING THAT CAME
UP TO THIS COURT AND THE COURT SAID NO, NO, NO, THAT'S NOT SUFFICIENT FOR
A RESTRAINING ORDER BECAUSE THERE IS A FEAR OF REVENGE BASED ON ACTUAL FILING OF THE
RESTRAINING ORDER APPLICATION. JUSTICE FASCIALE: THAT TESTIMONY
SUPPORTS YOUR ARGUMENT THAT THE RECORD WAS NOT -- THE RECORD DOES NOT SUPPORT
THE FINDING THAT THERE IS FUTURE RISK TO THE SAFETY AND WELL BEING OF THE ALLEGED
VICTIM, THAT WAS MY ORIGINAL QUESTION, WOULDN'T IT THEN BE REASONABLE THAT
THE FPO JUDGE WOULD NOT INCLUDE ANY OF THE ADDITIONAL RELIEF UNDER SUBSECTION F
BECAUSE REMEMBER, IN SUBSECTION E IT SAYS, THE FINAL PROTECTIVE ORDER SHALL BE
ISSUED ONLY AFTER A FINDING OR ADMISSION MADE, WAS MADE BY THE RESPONDENT, THAT
THE PREDICATE ACT OCCURRED AND IF THAT IS THE CASE, IT AUTOMATICALLY PROVIDES THE
VICTIM WITH PROTECTION, NO CONTACT AS WELL AS PROHIBITION FROM CERTAIN CONTACT.
SO IF YOU'RE CORRECT THAT THE RECORD IS INSUFFICIENT TO SUPPORT
THE FINDING THAT THERE WAS A POSSIBILITY, WUPT THAT REALLY JUST AFFECT THE NATURE
OF THE PROTECTION THAT THE VICTIM GETS RATHER THAN THE ISSUE ON PROTECTIVE
ORDER ITSELF. LEAH A. VASSALLO: NO BECAUSE IF IT WERE THE
CASE THAT MEETING A PREDICATE ACT AUTOMATICALLY MEPT THE REQUIREMENT OF A RESTRAINING
ORDER AND THE RESTRAINING ORDER MUST ISSUE IF THE PREDICATE ACT IS FOUND TO HAVE
OCCURRED THERE WOULD BE NO NEED TO CONSIDER ANYTHING ELSE. IT WOULD
AUTOMATICALLY ISSUE AT THAT POINT. JUSTICE FASCIALE: WELL, EXCEPT
FOR THE FACT THAT I WAS SUGGESTING THAT THE REASON WHY YOU DO CONSIDER IT
IS TO PROVIDE FURTHER RELIEF BEYOND THE RELIEF THAT IS REQUIRED IN SUBSECTION E.
LEAH A. VASSALLO: BURT THERE IS NOTHING THAT SAYS THAT THAT
ADDITIONAL RELIEF IS ONLY AVAILABLE IF THE POSSIBILITY EXISTS WHERE IT IS A POSSIBILITY
EXIST BEYOND A CERTAIN THRESHOLD, IF IT'S MORE THAN 50 PERCENT POSSIBLE,
YOU KNOW, OR LIKELY, THERE IS NOTHING TO TIE THE ADDITIONAL RELIEF TO THAT ADDITIONAL
FACTOR. IN FACT, IT PRETTY CLEARLY STATES THAT THESE ARE THE
TWO FACTORS TO CONSIDER IN FEDERAL TO ISSUE A PROTECTIVE ORDER.
JUSTICE FASCIALE: WHERE DOES IT SAY THAT? I AM LOOKING AT 2C:14-16
A AND THE LAST SENTENCE, THE COURT SHALL CONSIDER -- THIS ISN'T EVEN AN
EXHAUSTIVE LIST OF THAT, THE F P O JUDGE CAN HEAR AN CONSIDER OTHER FACTORS AS WELL.
LEAH A. VASSALLO: THAT'S TRUE. JUSTICE FASCIALE:
WHERE DOES IT SAY UNDER SUBSECTION A, JUST LIKE WHERE DOES IT SAY UNDER
SUBSECTION A THE PREVENTION OF THE DOMESTIC VIOLENCE ACT, THAT THE F R O JUDGE AND
THE FPO JUDGE SHOULD CONSIDER THESE FACTORS ESPECIALLY IN CONTEXT OF WHAT
SILVER SAID THAT THE EVIDENCE MUST BE CONSIDERED IN LIGHT OF THE FACTORS? HAD.
LEAH A. VASSALLO: I'M JUST -- I APOLOGIZE. I AM TRYING TO
PULL UP THE EX AK WORDS. I THOUGHT I HAD IT HERE IN FRONT OF ME AN I DON'T.
SO, TELL ME AGAIN, WHICH SECTION YOU WERE REFERRING TO PLEASE.
JUSTICE FASCIALE: 2C:14-16 A, THE SECTION THAT REQUIRES THE FILING PROTECTIVE
ORDER JUDGE TO CONSIDER, THE COURT SHOULD CONSIDER BUT MAY NOT RELATED TO
FOLLOWING FACTORS, THERE ARE TWO THINGS THE FPO JUDGE CONSIDERS WHEN EVALUATING
THE EVIDENCE AND IN SUBSECTION E SAYS E, THE FINAL PROTECTIVE ORDER SHALL ONLY
AFTER A FINDING HAS BEEN MADE POTENTLY THAT THE PREDICATE ACT HAD OCCURRED.
LEAH A. VASSALLO: YOUR HONOR, IF I MAY RATHER THAN TRY TO
FIND SOMETHING THAT I SHOULD HAVE IN FONT OF ME BUT I HAVE A MILLION OTHER THINGS
IN FRONT OF ME BUT NOT THAT CAN I RESERVE AN ANSWER TO THAT TO MY FINAL
RESPONSE. THE COURT: MS. VASSALLO. LEAH A.
VASSALLO: YES. THE COURT: YOU EARLY ON SAID EMOTIONAL AND MENTAL
HARM WOULD BE ENCOMPASSED IN THE SECOND FACTOR IN THE SECOND PRONG DOES THIS CASE
BOIL DOWN TO A SUFFICIENCY ARGUMENT THEN AS TO WHETHER THAT HAS BEEN SATISFIED.
LEAH A. VASSALLO: I THINK THERE IS ALWAYS A SUFFICIENCY ARGUMENT
BAESED ON THE ACTUAL LANGUAGE WHERE IT SAYS THE POSSIBILITY.
CHIEF JUSTICE RABNER: SO I WANT TO COME BACK TO THE TESTIMONY THAT YOU ALLUDED
TO EARLIER. LEAH A. VASSALLO: YES. CHIEF
JUSTICE RABNER: YOU SAID WEIGHT SHOULD BE GIVEN TO THAT FIRST QUESTION AN ANSWER
AND I WONDER IF THAT'S A FAIR READING OF IT BECAUSE THE VICTIM TALKS ABOUT
TERRIBLE INTIMACY ISSUES, TRUST ESHS, SELF WORTH ISSUES, INTERRUPTED SLEEP AND
IN THE END END SAYS I WONDER HOW I CAN EVER NOT BE TRAUM MAT TIEZED BY THIS.
I DON'T THINK THAT'S A POSSIBILITY. IS IT FAIR TO READ HER TESTIMONY
AS LIMITED ONLY FOR THE THREE YEARS AND NOT LOOKING INTO THE FUTURE IN LIGHT
OF WHAT SHE SAID. LEAH A. VASSALLO: I THINK IT IS FAIR THAT YOU
CAN INFER THAT IT IS NOT LIKELY CONNECTED TO CHANGE IN THE IMMEDIATE FUTURE AND
I KIND OF ALLUDED TO THAT EARLIER. I AM NOT SAYING IT THAT IT CAN'T BE PROCEED
PROJECTED OUT, BUT IT IS REFERRING TO THE LAST THREE YEARS DURING WHICH
TIME SHE ALREADY HAD A PROTECTIVE ORDER IN PLACE SO THE PROTECTIVE ORDER DID NOT
IN ANY WAY PROTECT HER FROM THAT EMOTIONAL DISTRESS, THAT DAMAGE THAT SHE
FELT, THE TRAUMA THAT SHE TESTIFIED THAT SHE FELT AND THAT SHE NEEDED THERAPY SO
HAVING A RESTRAINING ORDER TASH DASH. JUSTICE WAINER APTER:
THE SECOND PRONG IN PLAIN LANGUAGE DOES NOT SAY THE POSSIBILITY OF FUTURE RISK
TO THE SAFETY OR WELL BEING OF THE ALLEGED VICTIM IF THE TEMPORARY RESTRAINING
ORDER IS ALLOWED TO LAPSE OR THE POSSIBILITY OF FUTURE RISK TO THE SAFETY OR
WELL BEING OF THE ALLEGED VICTIM AS CAUSED BY POSSIBLE HARM FROM THE DEFENDANT.
AGREED? IT JUST GENERALLY SAYS THAT ONE OF THE
FACTORS THAT THE COURT SHOULD CONSIDER IS THE POSSIBILITY OF FUTURE RISK
TO THE SAFETY OR WELL BEING OF THE VICTIM SO WHERE FROM THE PLAIN LANGUAGE DO YOU
GET THAT YOU CAN ONLY CONSIDER THE WELL BEING OF THE ALLEGED VICTIM IF THERE
WERE TO BE NO TRO, WHERE ARE YOU GETTING THAT CONNECTION WHERE IT IS NOT SO FOUND
IN THE TEXT. LEAH A. VASSALLO: I AM SORRY IF THERE WERE
TO BE NO -- I AM NOT SAYING IT'S SPELLED OUT IN THE TEXT. I AM SAYING IF
THIS RESTRAINING ORDER WAS TO PROTECT HER FROM THAT VERY SAME EMOTIONAL HARM THAT
SHE HAD WHILE BEING PROTECTED BY THE RESTRAINING ORDER, I AM SAYING THAT
THERE IS NOTHING THAT TASH DASH LIKE THE RESTRAINING ON THE IS ALREADY IN PLACE
AND IT'S A FINAL RESTRAINING ORDER IT'S NOT A TRO IN THE SENSE THAT THE FINAL
RESTRAINING ORDER WAS ISSUED FIVE YEARS AGO AND WE'VE APPEALED BUT IT HAS NEVER
BEEN RESCINDED. IT HAS BEEN IN PLACE THIS ENTIRE TIME. WHAT
SHE IS CITING IS HER POTENTIAL FUTURE HARM IF THERE IS NOT A T R O, SHE IS ALSO
SAYING AS HER CURRENT ONE THE TRO, NOT A TRO, A FPO. JUSTICE
WAINER APTER: THE STATUTE DOESN'T SPECIFICALLY SAY THAT AN F R O HAS TO BE
SUFFICIENT SO THAT THE VICTIM WILL NEVER FEEL TRAUMA AGAIN, THE STATUTE IS
ACKNOWLEDGING THAT VICTIMS OF SEXUAL ASSAULT MAY FEEL TRAUMA FOR MANY YEARS TO
COME IF NOT FOR THEIR ENTIRE LIVES. IT DOES NOT SAY THAT THE FPO HAS TO CURE
IT. ALL IT SAYS, SHALL CONSIDER BUT NOT BE LIMITED TO
THE POSSIBILITY OF FUTURE RISK TO THE SAFETY OR WELL BEING OF THE ALLEGED VICTIM.
LEAH A. VASSALLO: RIGHT. AND WHAT I AM SAYING IS THAT THE
FUTURE RISK -- THERE IS A FUTURE WHERE THE FUTURE ISSUE IS ALSO THE PRESENT ISSUE.
SO I'M NOT DISAGREEING THAT TRAUMA CAN LAST FOEFR IN CASES. I AM NOT
DISAGREEING THAT PROTECTIVE ORDERS YOU KNOW, IN MANY CASES ARE VERY HAENL, ESSENTIAL.
ALL I AM SAYING IS TO SAY THAT'S THE ONLY FACTOR THAT MEETS PRONG 2, THERE IS
ANOTHER ARGUMENT THAT IS ALREADY MET BY THE NATURE OF THE PREDICATE ACT BUT TO
SAY THAT THAT IS SUFFICIENT AND I APOLOGIZE FOR USING THE TERM PRONG 2,
BUT JUST FOR SIFRP POLICE SIT SAKE BECAUSE WE'VE BEEN DOING THAT FOR 6 YEARS, TO
SAY THAT THE SAME EMOTIONAL HARM THAT I AM SUFFERING NOW I I WILL CONTINUE TO SUFFER
IN THE FUTURE REGARDLESS OF WHETHER I HAVE AN F R O OR NOT DOESN'T JUSTIFY
A FINAL RESTRAINING ORDER, IF IT WASN'T TAKING AWAY SOMEONE ELSE'S CONSTITUTIONAL
RIGHTS, IF THERE WASN'T ANOTHER PERSON INVOLVED, I WOULD AGREE. IF ANY
ONE NEEDS ANY HELP THEY NEED BUT YOU'RE TAKING SOMETHING FROM SOMEONE ELSE AT THE SAME
TIME AN SHE IS NOT IN ANY WAY SAYING THESE ARE THE SPECIFIC RISKS, HE CALLED
ME, HE TEXTED ME, HE THREATENED ME. JUSTICE PIERRE-LOUIS: MS.
VASSALLO, IN TERMS OF GETTING TO PRONG 2, WHAT SHOULD COURTS CONSIDER IN
M DETERMINING WHETHER PRONG 2 HAS MET THAT POSSIBILITY OF FUTURE RISK TO THE SAFETY
OR WELL BEING OF THE ALLEGED VICTIM. WHAT ARE YOUR THOUGHTS ON WHAT COURTS
SHOULD CONSIDER AND SPECIFICALLY ON THE FACTORS THAT LEGAL SERVE VISION ES HAD
WITH THOSE. LEAH A. VASSALLO: A LOT OR I SHOULD SAY SOME
OF THE MAJOR FACTORS APPLICABLE TO THE P V DA SHOULD BE CONSIDERED, DOMESTIC VIOLENCE,
WHETHER IT'S BETWEEN THE PARTIES OR BETWEEN ANYONE SHOULD BE CONSIDERED
OR ANY VIOLENCE EVEN IF IT IS NOT DOMESTIC, THE HISTORY OF VIOLENCE THAT THE RESTRAINING
ORDER IS BEING SOUGHT AGAINST SHOULD BE CONSIDERED. IT SHOULD BE CONSIDERED
IF THERE IS AN IMMEDIATE DANGER TO PERSON AND PROPERTY. THOSE WOULD BE WITH WITH
FROM THE P V DA, I DON'T THINK THE ONE SPECIFICALLY REMAINING TO
RELATIONSHIPS IN THE P V DA SHOULD BE CONSIDERED, YOU KNOW, RELATED TO CHILD CUSTODY
AN THINGS LIKE THAT. JUSTICE WAINER APTER: GO AHEAD JUSTICE
PIERRE-LOUIS AND THEN I'LL FOLLOW-UP ON THAT. JUSTICE PIERRE-LOUIS:
I JUST WANT TO KNOW WHAT FACTORS SHE THINKS SHOULD BE INSERTED.
LEAH A. VASSALLO: THE AMICUS BRIEF SUGGESTED ADDITIONAL FACTORS WHICH I VERY
MUCH AGREED WITH, WHETHER THERE WERE MULTIPLE OFFENSES, WHETHER THERE WERE
ANY STEPS TAKEN TO LOCATE OR CONTACT THE VICTIM AND EVEN THE OPPORTUNITY OR CHANCE
OF FUTURE CONTACT BETWEEN THE PARTIES I SHI SHOULD BE CONSIDERED, IT SHOULDN'T
NECESSARILY BE DETERMINING, BUT IT SHOULD BE CONSIDERED, DO THEY LIVE IN THE SAME
APARTMENT, ARE THEY IN THE SAME TOWN OR FURTHER AWAY. IN THIS CASE, IT HAS
BEEN FIVE YEARS AND THEY'VE NEVER RUN INTO EACH OTHER SO IT'S NOT A HIGH LIKELIHOOD.
WHAT I DISAGREE WITH THE AMICUS SUGGESTION WAS THAT THE NATURE
OF THE OFFENSE BE CONSIDERED OR THAT THE RESULT HARM TO THE VICTIM SHOULD BE
CONSIDERED, THEY SHOULD BE CONSIDERED ON WHETHER THE PREDICATE ACT WAS
ESTABLISHED. THE STATUTE SPECIFICALLY OUTLINES THREE ACTS SO YOU REALLY NEED TO
CONSIDER THE NATURE OF THE OECHS BECAUSE THERE ARE ONLY THREE OFFENSES THAT ARE
OUTLINED IN THE ACT AND I BELIEVE TWO MORE ARE BEING ADDED IN JANUARY.
NOW, WHAT IS INTERESTING IS THE ORIGINAL DRAFT BILL OF SASPA
HAS, I THINK 16 DIFFERENT PREDICATE ACTS AND THEN THAT WAS CUT DOWN. ORIGINAL
LY I GUESS, THERE WAS MORE OF THE P V DA, BUT NOW IT'S JUST THIS PREAPPELLATE
SO THE NATURE OF THE OFFENSE IS ALREADY INCORPORATED ON WHAT IS PROTECTED BY SASPA
AND THE RESULT HARM REALLY GOES WITH THE NATURE OF THE OFFENSE. IF
IT IS SOMETHING LIKE ASSAULT WAS COVERED BY SASPA, THEN THERE WOULD BE A VARIATION
IN THE RESULTING HARM, IT COULD BE A SLAP OR SOMEONE COULD BE BEATEN ALMOST
TO DEATH AN IT WOULD STILL BE ASSAULT AN THAT MAY HAVE SOME RELEVANCE, BUT, AGAIN,
I THINK YOU'RE LOOKING AT WHAT IS THE FUTURE RISK SO I PERSONALLY DON'T
THINK THAT SHOULD IMPACT EITHER WAY. I DON'T THINK THE NATURE OF THE OFFENSE OR
THE RESULTING HARM TO THE VICTIM SHOULD BE CONSIDERED, BUT I DO THINK THOSE OTHER
ISSUES THAT WERE BROUGHT UP BY THE AMICUS BRIEF AND I'M SORRY I DON'T HAVE
THE NAMES RIGHT IN FRONT OF ME, I THINK IT IS APPROPRIATE THAT THEY BE CONSIDERED
AND I THINK THE RELEVANT WORDS OF THE P V DA SHOULD BE CONSIDERED BECAUSE
AT THE END OF THE DAY THE IMPORTANT THING IS TO FOCUS ON WHAT THE ACTUAL INTENTION
WAS, WHICH IS TO PROTECT THE PERSON, NOT TO, YOU KNOW, MAKE A RESTRAINING
ORDER ISSUE UNDER ANY CIRCUMSTANCE OR TO MAKE IT IMPOSSIBLE TO GET A RESTRAINING
ORDER. JUSTICE FASCIALE: JUST ONE POINT. THE RELEVANT PORTIONS
OF THE P V DA SPECIFIC EXPRESSLY REQUIRES THAT THE FRO JUDGE GRANT ANY RELIEF NECESSARY
TO PREVENT FUTURE ABUSE. THERE IS NO SUCH LANGUAGE IN SASPA.
LEAH A. VASSALLO: I KIND OF THOUGHT THERE WAS SOMETHING SIMILAR.
JUSTICE FASCIALE: ACTUALLY, THE NECESSARY TO PREVENT FUTURE ABUSE IN THE P V DA
IS NOT EVEN ONE OF 6 FACTORS THAT THE FROE JUDGE SHOULD CONSIDER IT IS SEPARATE
AN APPEARS UNDER SUBSECTION E UNDER THE FINAL PROTECTIVE ORDER STATUTE IT ELIMINATED
WHAT APPEARED THE PROTECTIVE ORDER OF THE STATUTE WHICH GAVE THE T P O JUDGE
A RIGHT TO ISSUE A PROTECTIVE ORDER TEMPORARILY WHEN NECESSARY TO PROTECT THE SAFETY
AN WELL BEING. THAT LANGUAGE WAS REMOVED FROM THE FINAL PROTECTIVE ORDER
STATUTE 14-16. IT IS NO LONGER IN 14-16 AND THAT IS BECAUSE SUBSECTION E ALREADY
REQUIRES THE ORDER TO CONTAIN THE PROTECTION OF NO CONTACT AND FOCUS IT ON
FURTHER PRIVATE ACTS. JUSTICE WAINER APTER: MS. VASSALLO, THE
TRUTH OF YOUR ARGUMENT ABOUT READING CERTAIN PROVISIONS OF THE P V DA INTO
SASPA, THE LEGISLATURE WAS AWARE OF THE P V DA P V DA AT THE TIME THEY EVEN ACTED
SASPA IN 2015, CORRECT? SLAS VAST YES. JUSTICE WAINER APTER:
AS JUST STIS FASH POIND OUT BOTH OF THE PROGSZ STATE SOMETHING TO THE EFFECT
OF AT THE HEARING THE STANDARD FOR PROVING THE ALLEGATIONS SHALL BE VALUED UPON
THE EVIDENCE, THE COURT SHALL CONSIDER BUT NOT BE LIMITED TO THE FOLLOWING
FACTORS; THAT IS IDENTICAL. SO PRESUMABLY WHEN THE LEGISLATURE WAS
CRAFTING SASPA IN 2015, THEY WERE LOOKING AT THE P V DA BUT THAT'S WHERE
THEY THEN SEEM TO GO IN VASTLY DITCH DIRECTIONS, YOU MENTIONED THAT YOU THINK THE
FIRST TWO FACTORS FROM THE P V DA SHOULD BE RELEVANT TO A SASPA INQUIRY,
BUT THE P V A FACTOR 2 SAYS THE EXISTENCE OF IMMEDIATE DANGER TO PERSON OR PROPERTY.
THE LEGISLATURE, OF COURSE, COULD HAVE WRITTEN THAT INTO SASPA
AS FACTOR 2, CORRECT? HAD. LEAH A. VASSALLO: THEY COULD HAVE AND
THEY CHOSE NOT TO AND I AGREE WITH YOU, THERE, THERE ARE SOMEWHAT AMS AND
MEANS BETWEEN THE TWO STATUTES. JUSTICE WAINER APTER: IT DOESN'T
ONLY SEEM TO BE SOMEWHAT, IT SEEMS LIKE THE DIFFERENCE BETWEEN IMMEDIATE
DANGER TO PERSON OR PROPERTY VERSUS THE POSSIBILITY OF FUTURE RISK TO THE SAFETY
OR WELL BEING OF THE ALLEGED VICTIM IS VAST AND IT SEEMS LIKE IT WOULD BE
INAPPROPRIATE OF US TO IGNORE THE PLAIN LANGUAGE THAT THE LEGISLATURE CHOSE TO
CODIFY IN SASPA 2015 AND TO INSTEAD SAY, WE ARE GOING TO READ THE POSSIBLE SIBT
OF FUTURE RISK TO THE SAFETY OR WELL BEING OF THE ALLEGED VICTIM TO BASICALLY
REQUIRE AN IMMEDIATE DANGER TO THE PERSON; THAT'S WHAT IT SEEMS LIKE YOU'RE ASKING
US TO DO AND IT SEEMS LIKE THAT THAT WAS THE LEGISLATURE'S INTENTIONAL CHOICE
NOT TO DO IN 2015. LEAH A. VASSALLO: WELL, THAT'S ACTUALLY NOT
WHAT I AM ASKING ASKING YOU TO DO, SOMEONE WAS ASKING WHAT ARE THE FACTORS
THAT SHOULD BE CONSIDERED AND I AGREE THAT THOSE SHOULD BE CONSIDERED BUT I THINK
THE STAN TARD ZOUT LINE IN THIS STATUTE IS THE ONE THAT ACTUALLY CONTROLS.
MY ISSUE -- JUSTICE PIERRE-LOUIS: THE STANDARD
OUTLINE -- LEAH A. VASSALLO: IN THE SASPA, IS THE ONE
THAT HAS TO CONTROL THE SASPA, BUT MY ISSUE WITH PRONG 2, IF YOU WILL, IS THAT IT
SAID SOMETHING AND IT SAID NOTHING AT THE EXACT SAME TIME. THERE
WILL ALSO BE A POSSIBILITY AS LONG AS THE ALLEGED VICTIM AND THE ALLEGED, I DON'T KNOW,
PERPETRATOR, ARE ALIVE, THERE IS ALWAYS A POSSIBILITY THAT SOMETHING COULD
HAPPEN. IT IS IMPOSSIBLE TO SAY THAT THERE IS A SITUATION AND I WILL GIVE YOU
A FOR EXAMPLE, AND JUST LOOKING HERE AT THE OPINION OF THE JUDGE IN THE
SECOND HEARING, WHEN HE LOOKED AT PRONG 2 AGAIN AN HE SAYS, TURNING TO THE SECOND
SASPA PRONG -- OH, NO, THIS IS FROM THE APPELLATE COURT REFERENCING THE TRIAL
JUDGE'S DECISION. IT SAYS, TURNING TO THE SECOND SASPA PRONG, THE TRIAL JUDGE
NOTED DEFENDANT HAD NOT ATTEMPTED TO CONTACT PLAINTIFF SINCE THE EVENT OCCURRED
EITHER CORRECTLY OR JIB DIRECTLY, END QUOTE, BUT THAT LACK OF CONTACT,
QUOTE, DID NOT FORECLOSE THE POSSIBILITY OF RISK TO HER SAFETY OR WELL BEING.
WHAT WOULD ACTUALLY FORECLOSE THE POSSIBILITY OF RISK TO HER SAFETY OR WELL
BEING? JUSTICE WAINER APTER: BUT I THINK THAT'S A
DISAGREEMENT WITH THE TECH THAT THE LEGISLATURE CHOSE TO EVEN ACT IN 2015, NOT WITH
ANY JUDICIAL INTERPRETATION OF THAT TEXT, MEANING, IT IS POSSIBLE THAT UNDER YOUR
ARGUMENT, THE -- YOU WOULD PREFER THAT THE LEGISLATURE HAD WRITTEN INTO
PRONG 2 THE EXISTENCE OF FUTURE RISK TO THE SAFETY OR WELL BEING OF THE ALLEGED
VICTIM, THEN YOU WOULDN'T BE ARGUING THAT THERE IS ALWAYS A POSSIBILITY, OR
FOR EXAMPLE, YOU SAID, YOU KNOW, IT SAYS SOMETHING AN IT SAYS NOTHING AT THE
SAME TIME. THAT WAS THE LEGISLATURE'S CHOICE, THE LEGISLATURE CAN CHOOSE TO HAVE
AN FROE ISSUE MERELY UPON A POSSIBILITY RATHER THAN THE EXISTENCE OF AN
THE EXPLICIT MEANING OF THAT CHOICE IN 2015, SO HOW CAN WE IGNORE THAT PLAIN
STATUTORY TEXT? LEAH A. VASSALLO: I WOULD GO SO FAR AS TO SAY
I THINK YOU HAVE TO, AT LEAST, CONSIDER NOT TAKING IT AS LITERALLY, ANY
POSSIBILITY. I MEAN, YOU HAVE A SITUATION WHERE YOU STARTED WITH A CRIMINAL OFFENSE,
A PREDICATE ACT AND IN THIS CASE, IT'S NOT RELEVANT, BUT IN THIS CASE, THEY
DID GO TO THE POLICE AN THE POLICE CHOOSE TO DO NOTHING, BUT THEY DON'T HAVE TO.
THEY ARE TAKING THAT AS A CRIMINAL ACT, TAKING IT OVER TO THE CIVIL SIDE,
APPLYING THE LOWEST POSSIBLE BURDEN OF PROOF, NOT PROVIDING FOR A TRIAL BY JURY,
NOT PROVIDING A COURT POINTED ATTORNEY AN THEN DEPRIVING SOMEONE OF THE
CONSTITUTIONAL RIGHTS BASED ON THE OUTCOME IT CAN'T BE SO SLOPPY.
JUSTICE WAINER APTER: I HADN'T UNDERSTOOD YOU WERE MAKING THIS CONSTITUTIONAL
ARGUMENT BUT ASSUMING THAT YOU ARE, THE ONLY THING I SAW IN E THAT THE FINAL
ORDER SHALL DO IS PROHIBIT THE RESPONDENT FROM HAVING CONTACT AND FROM COMMITTING
ANY FUTURE ACT OF NONCONSTITUTIONALLY YOU'LL CONDUCT BETWEEN THE VICTIM.
LEAH A. VASSALLO: NOT IN THE SECTION FOR SASPA, BUT IN THE SECTION
AS IT RELATES TO PERMITS TO BUY OR CARRY OR OWN FIREARMS, THEY ARE SPECIFICALLY
PRECLUDED FROM DOING THAT IF THERE IS AN EXISTING RESTRAININGING ORDER.
UP TOP NONE CONSENSUAL CLOP. JUSTICE WAINER APTER: SO YOU'RE ARGUING
THAT WE HAVE TO READ SUBSECTION 2 NONLITERALLY BECAUSE OTHERWISE IT
WOULD VIOLATE THE CONSTITUTIONAL RIGHTS OF A DEFENDANT? LEAH A.
VASSALLO: THAT'S NOT MY ARGUMENT. MY ARGUMENT IS THAT IT CLEARLY --
I DIDN'T MAKE A CONSTITUTIONAL ARGUMENT WHEN I FILED BLANK. I AM SAYING
IT IS SUCH A DIRTY WORD AND AMBIGUOUS CRITERIA. YOU ONLY HAVE TWO THINGS THAT ARE
REQUIRED TO BE CONSIDERED AND THIS IS ONE OF THEM AN IF IT IS MET BY ANYTHING,
IF IT'S MET BY ANY PERSON FILING FOR A RESTRAINING ORDER SAYING IT WOULD GIVE ME
PEACE OF MIND TO HAVE A RESTRAINING ORDER WHICH THEY OBVIOUSLY WOULD OR
THEY WOULDN'T HAVE FILED FOR IT TO BEGIN WITH, IF THAT AUTOMATIC Aly SATISFIES
THAT CONSIDERATION, WHY NOT, SAY HEY, IF YOU DIDN'T WANT GET A RESTRAINING
ORDER. JUSTICE FASCIALE: BECAUSE AND THAT'S MY POINT, BECAUSE
THE LEGISLATURE REQUIRED THE FPO JUDGE, FINAL PROTECTIVE ORDER JUDGE TO CONSIDER
A POSSIBILITY OF FUTURE RISK TO THE SAFETY OR WELL BEING OF THE ALLEGED
VICTIM WHEN IT COMES TIME TO CHECK OFF ALL THE BOXES IN THE APPEAL ORDER ABOUT
WHETHER THE FPO JUDGE SHOULD HAVE ORDERED DEGS NATURAL PROTECTION TO THE VICTIM,
ACCORDINGLY, ACCORDING TO F 1, 2, 3, 4 AND 5, WHICH BY THE WAY EXISTS WHEN THE
TEMPORARY PROTECTIVE ORDER JUDGE ISSUES THE TEMPORARY PROTECTIVE ORDER, THOSE
SAME SECTIONS APPEAR IN 14-15. AND FWEN, 14-15 GIVES A TEMP
ORARY PROTECTIVE ORDER JUDGE THE RIGHT TO ISSUE A TEMPORARY PROTECTIVE ORDER
IF THE JUDGE CONCLUDES SUCH AN ORDER WAS NECESSARY TO PROTECT THE SAFETY AND
WELL BEING OF THE ALLEGED VICTIM. WHEN YOU BET TO THE FINAL
PROTECTIVE ORDER HEARING, THE QUESTION OF THE NECESSITY IS NO LONGER EXPRESS
LY DELINEATED. IN SECTION 14-16. THE NECESSITY FOR THE ORDER IS ALREADY SATISFIED
WHEN UNDER SUBSECTION E THE RELIEF SHALL BE IN THE ORDER, NO CONTACT WITH THE
VICTIM AND PREVENTION FROM FUTURE ACTS OF PREDICATE ACT. LEAH A.
VASSALLO: BUT IF THAT POSSIBILITY IS ALWAYS NEXT, THEY COULD JUST WEIGH ALL
OPTIONS AVAILABLE IF THERE IS A PREDICATE ACT. I MEAN, WHY TAKE THE EFFORT
TO SAY EVALUATE THIS POSSIBILITY WHEN IT WILL ALWAYS BE MET, EVERY SINGLE APPLICATION
FOR A RESTRAINING ORDER WILL HAVE SOME WITHIN'S WELL BEING TIED TO THE
OUTCOME. JUSTICE FASCIALE: LET ME GIVE YOU AN EXAMPLE.
LET'S ASSUME THE VICTIM WORKS ON THE 10TH FLOOR OF A HIGH-RISE BUILDING
AND THE DEFENDANT OR THEY CALL HIM THE RESPONDENT YOU, BUT LET'S SAY THE DEFENDANT
WORKS ON THE 25TH FLOOR AND THE VICTIM GETS A TP O BECAUSE THE VICTIM ALLEGED
THAT THE DEFENDANT CREATED A PREDICATE ACT. NOW WE'RE AT THE
FINAL PROTECTIVE ORDER HEARING AN THE FEEM PROTECTIVE ORDER FINES, INDEED THAT
THE DEFENDANT COMMITTED THE PREDICATE ACT, THE QUESTION IS, IF THE ORDER
IS COMING TO ISSUE WHY DO WE HAVE THE FPO JUDGE EVEN CONSIDERING THE POSSIBILITY
OF FUTURE RISK. WITH THIS VERY FACT PATTERN, HE'S ON THE 25TH FLOOR SHE'S
ON THE 15TH FLOOR, UN SUBSECTION F THE JUDGE CAN CHECK OFF PAR COMBRAF IS PROHIBITING
THE RESPONDENT FROM STAYING AWAY FROM WHERE SHE IS OR UNDER SUBSECTION, I
THINK IT IS 2, CAN STAY AWAY FROM HER EMPLOYERS, EMPLOYEES, AND FELLOW WORKERS
TO KEEP HIM AWAY FROM THE 15TH FLOOR. IT IS A BASIS FOR THE FPO JUDGE TO ADD TO
THE FINAL PROTECTIVE ORDER YOUR PROCEED MORE PROTECTION THAT EXISTS BECAUSE
OF THE POSSIBILITY OF THE SAFETY OF THE VICTIM AND THEN THAT WHICH AUTOMATICALLY
MUST BE CONTAINED IN THE FPO AS PART OF THE BLANK. PERHAPS
THE LEGISLATURE REQUIRED THE FPO JUDGES TO CONSIDER ON OTHER DOCUMENTS, THE MERE
POSSIBILITY OF FUTURE RISK TO SAFETY OR WELL BEING. LEAH A.
VASSALLO: I THINK THE PROBLEM -- I DISAGREE AND I THINK WE MUST FWRAE TO DIS
COMBRAE ON THIS POINT BUT I THINK THE PROBLEM WE RUN INTO IN THIS PARTICULAR
CASE, THIS WASN'T A SITUATION WHERE THERE WAS ANY VIOLENCE OR ANYTHING LIKE THAT.
IT WAS AN ISSUE OF IF SOMEONE IS TOO DRUNK TO CONSENT TO A SEXUAL ACT DOES IT
MEET THE PREDICATE ACT AND I WILL SAY THAT I DON'T BELIEVE THAT ALCOHOL AND SEX
ARE BLANK. L IF YOU GO TO ANY COLLEGE CAMPUS ACROSS AMERICA ON ANY WEEKEND OR
PROBABLY ANY DAY OF THE WEEK ALL OVER THE PLACE THERE WILL BE DRUNK PEOPLE
ENGAGED IN SEXUAL ACTIVITIES. IT DOESN'T MATTER IF THEY'RE BOTH DRUNK, ONE OF
THEM IS DRUNK ONE IS NOT, ONE IS MALE, ONE IS FEMALE. IT DOESN'T EVEN MATTER.
ALL OVER THERE ARE SITUATIONS WHERE IF EITHER PARTY WANTS TO, THEY CAN FILE FOR
A RESTRAINING ORDER SIMPLY BASED ON THE FACT THAT THEY WERE TOO DRUNK TO
CONSENT TO SEX, IT WILL BE IN MY OPINION MISINTERPRETED IN THEIR FOOIFR BY A MISS
APPLICATION, M.T.S. WHERE IT DOESN'T CONSIDER THE PERCEPTION OF THE OTHER
PARTY. IT JUST CONSIDERS IT FROM THE PERCEPTION OF THE ALLEGED VICTIM IF THEY
FELT LIKE THEY WEREN'T GIVING CONSENT OR IF THEY BELIEVED THEY WEREN'T GIVING
CONSENT, IT MET THE STANDARD OF A NONE CONSENSUAL ACT OR IF THEY WERE TOO DRUNK
AN NOW THEY'RE SAYING IT DOESN'T HAVE TO CONSIDER THE RISK OF FUTURE HARM
OR ANYTHING LIKE THAT, IF THEY WERE FOUND TO BE TOO TRUNK TO CONSENT TO SEX THERE IS
AUTOMATICALLY GOING TO BE A RESTRAINING ORDER AGAINST THE OTHER PARTY IF
THEY FILE FOR IT BECAUSE THEIR WELL BEING WILL BE HELPED IF THAT RESTRAINING ORDER
IS ISSUE AN THAT PERSON MAY BE KICKED OFF CAMPUS OR ANYTHING ELSE BECAUSE THEY
CAN NO LONGER BE NEAR THE OTHER PERSON, THE CONSEQUENCES ARE HUGE.
JUSTICE FASCIALE: SUBSECTION B SAYS, THE COURT SHALL NOT DENY DUE TO
THE ALLEGED VICTIM OR RESPONDENT INTOXICATION. SETTING
THAT ASIDE, THIS COURT ALREADY DEALT WITH CONSENT AN THE QUESTION IN PRONG 1.
JUSTICE SOLOMON: I HAVE JUST ONE SIMPLE QUESTION.
ASSUME FOR A MINUTE -- WELL, TAKING HER TESTIMONY REGARDING THE POSSIBILITY OF
FUTURE HARM, THE LIKELY EFFECTS THAT HAVE BEEN ON HER, MENTAL HEALTH ISSUES,
OTHER ISSUES, FEARS, THINGS LIKE THAT WHICH SHE TESTIFIED TO. SHE SEEMS TO HAVE
TESTIFIED ARE GOING ON AND THEREFORE WILL GO ON IN THE FUTURE.
OTHER THAN THAT, WHAT OTHER EVIDENCE DO YOU THINK WOULD REQUIRE THE PLAINTIFF TO
ESTABLISH THE POSSIBILITY OF FUTURE HARM AS APPLIED TO HER WELL BEING.
LEAH A. VASSALLO: EVEN IF YOU LOOK AT THOSE SEVERAL UNPUBLISHED CASES THAT WERE
ATTACHED TO THE AMICUS BRIEF THERE WASN'T A SINGLE ONE OF THEM WHETHER THE
RESTRAINING ORDER WAS GRANTED OR WHETHER IT WASN'T, THERE WASN'T A SINGLE ONE THAT
HAD A SINGLE THING THAT THE DEFENDANT ACTUALLY DID THAT INDICATED THERE WAS ANY
RISK. EVERYONE OF THEM HAD SOMETHING, THEY CONTACTED THEM, THEY TEXTED
THEM, THEY THREATENED THEM. THEY HAD A HISTORY OF ABUSE. THERE WERE SOME THAT WERE
DENIED THAT DIDN'T MEET PRONG 2 THAT ACTUALLY HAD SIGNIFICANTLY MORE THAN
THIS CASE HAS. THIS CASE HAS ABSOLUTELY NOT A SINGLE THING THAT M T HAS DONE THAT
WOULD INDICATE HE WAS IN ANY BAY -- JUSTICE SOLOMON: FORGET
THAT. LET ME JUST ASK. THE COURT HAS ALREADY MADE
A FINDING THAT THERE WAS AN ACT, A PREDICATE ACT, NOW WE'RE ON PRONG 2.
LEAH A. VASSALLO: RIGHT. JUSTICE SOLOMON: IT TALKS
ABOUT WELLNESS AND THAT IT IS PART OF POSSIBILITY OF FUTURE HARM. SHE
TESTIFIED ABOUT WHAT THAT WAS, FEAR IN PUBLIC PLACES LIKE THE SUPERMARKET, ALL OF
THESE CONCERNS, AN INABILITY TO INTERACT WITH OTHER PEOPLE OR HAVE
RELATIONSHIPS, ETC., ETC., SO IT HAS BEEN ONGOING. I THINK SHE TESTIFIED SUFFICIENTLY
THAT IT IS GOING TO GO ON. IT'S GOING ON. IT'S CONTINUING TO GO ON IN THE
FUTURE. OTHER THAN HER TESTIMONY, IF THAT'S NOT ADEQUATELY
ESTABLISHED, POSSIBLE FUTURE HARM TO HER WELL BEING, WHAT OTHER EVIDENCE DO YOU
NEED? IF THE LEGISLATURE INCLUDED THAT LANGUAGE, POSSIBILITY
OF FUTURE HARM, NOT JUST PHYSICAL HARM, BUT WELL BEING, WHAT OTHER EVIDENCE DO YOU
THINK WE SHOULD REQUIRE. LEAH A. VASSALLO: THAT THE DEFENDANT
DOES SOMETHING THAT CREATES FUTURE HARM TO HER WELL BEING LIKE --
JUSTICE NORIEGA: I'M SORRY TO INTERRUPT. FOR ARGUMENTS SAKE,
LET'S SAY PRONG 2 BREAKS DOWN INTO TWO PORTIONS ONE IS THE RISK OF SAFETY WHICH
COULD BE TRIGGERED BY SOMEONE MAKING A PHONE CALL OR INTIMIDATING OR DOING
SOME KIND OF DIRECT ACT AND THE SECOND PIECE IS WELL BEING. IT
IS IT IS VERY WELL DOCUMENTED THAT SOMEBODY WHO IS A SURVIVOR OF A SEXUAL ASSAULT
OR SEXUAL CONTACT WILL CONTINUE TO SUFFER WITH REGARD TO WITH THAT CONDUCT
INTO THE FUTURE SO ISN'T THAT ALLEGATION AND ISN'T THAT TESTIMONY SUFFICIENT TO
SATISFY THAT HER WELL BEING WILL CONTINUE TO BE AFFECTED BY THE IDEA OF THIS
PERSON BEING OUT THERE AND HAVING VIOLATED THEM IN THAT INTERPERSONAL WAY.
LEAH A. VASSALLO: THERE IS A FEW THINGS I WOULD DISAGREE WITH. A TELEPHONE
CALL IS NOT A SAFETY ISSUE BUT IT COULD AFFECT SOMEONE'S WELL BEING SO I WOULD
CONSIDER SOMETHING LIKE HARASSMENT TO BE SOMETHING THAT AFFECTS SOMEONE'S WELL
BEING WHEREAS SOMETHING LIKE ASSAULT IS SOMETHING THAT WOULD AFFECT THE THEIR SAFETY.
I WOULD NOT SAY THAT THEY MEANT TO PROTECT THE HAPPINESS,
REGARDLESS OF WHETHER ANYTHING TO DO WITH HER FEARS IS IRRATIONAL OR NOT. I AM
NOT SAYING THEY ARE NOT RATIONAL. I AM NOT IN ANY WAY JUDGING HER BUT I AM
SAYING IT CANNOT BE COMPLETELY SUBJECTIVE TO WHAT THE ALLEGED VICTIM IS FEELING
REGARDLESS OF WHAT THE PERSON WHO IS ACTUALLY GOING TO BE RESTRAINED HAS DONE OR
COULD DO IN THE FUTURE. JUSTICE PIERRE-LOUIS: WE TALKED
ABOUT THE DIFFERENT FACTORS THAT SHOULD BE CONSIDERED, THE FACT THAT THE
RESPONDENT CONTACTING THE VICTIM OR HE ATTEMPTS TO CONTACT THE VICTIM, IS IT YOUR
POSITION THAT THAT SHOULD BE A REQUIRED FACTOR TO BE FOUND IN ORDER TO FIEND
THAT THERE IS ANY POTENTIAL FOR FUTURE RISK OF HARM OR SOME SAFETY TO THE VICTIM.
LEAH A. VASSALLO: I AM SAYING ASH DASH. JUSTICE
PIERRE-LOUIS: IT SOUNDED LIKE AS YOU WERE ANSWERING, I THINK JUST SOLOMON'S QUESTION
YOU KNOWED THIS THERE WAS NO OTHER CASE, OR CASES THAT HAVE NOT INCLUDED
IN ADDITIONAL FACTOR. LEAH A. VASSALLO: RIGHT. L LIKE IF YOU
CONSIDER THOSE 7 OR 8 FACTORS AND YOU FOUND THAT NONE OF THEM APPLY, AT ALL, YOU
SHOULD NOT ISSUE A REVAINING ORDER. IF THERE IS NO PAST HISTORY, THERE IS NOT
MULTIPLE OFFENSES, THERE IS NOTHING TO INDICATE THAT ANYTHING IS GOING TO
HAPPEN IN THE FUTURE, BUT THE PERSON REQUESTING THE RESTRAINING ORDER HAS A FEAR
WHETHER RATIONAL OR IRRATIONAL THAT SOMETHING POSSIBLY COULD HAPPEN, YOU
SHOULD NOT ISSUE A RESTRAINING ORDER. JUSTICE PIERRE-LOUIS: IS IT
YOUR POSITION THAT IT IS REQUIRED THAT THERE HAD BEEN SOME CONTACT.
LEAH A. VASSALLO: NO, BUT ANY. JUSTICE PIERRE-LOUIS: BELIEF.
LEAH A. VASSALLO: ONE OF THOSE FACTORS, SOMETHING SHOULD HAVE
HAPPENED THAT M.T. DID AT SOME POINT THAT AFFECTS THE IDEA THAT IN THE FUTURE THERE IS
SOME RISK OF NOT HAVING A RESTRAINING ORDER OTHER THAN THE ALLEGED VICTIM
WOULD BE HAPPIER, THEREFORE, MEETING THE WELL BEING CRITERIA WITH THE RESTRAINING
ORDER THAN SHE WOULD BE WITHOUT. JUSTICE NORIEGA: ISN'T
THE THING THAT WAS DONE IN THIS CASE WAS THE SEXUAL CONTACT THAT HAS AFFECTED
THE WELL BEING OF THE VICTIM? M. ISN'T THAT WHAT WE'RE TALKING ABOUT
SO IT'S THAT SAME ACT THAT PER CESARES AN CONTINUES TO AFFECT THE INDIVIDUAL'S
WELL BEING AND THIS IS DIFFERENT FROM P V DA WE RECOGNIZE THAT.
LEAH A. VASSALLO: IT IS DIFFERENT BUT WHAT IS NOT DIFFERENT IS THE LAST TIME WE
WERE BEFORE THIS COURT WITH THE SAME EXACT CASE AND THE COURT PREVIOUSLY SUGGEST
IN ITS OPINION THAT THE FACTS DO NOT MEET THE BURDEN TO MEET PRONG 2. I WILL TELL
YOU IT HAS BEEN A WOOERD WEIRD EXPERIENCE. JUSTICE PIERRE-LOUIS:
THE OPINION NOTED WHAT FINDINGS THE TRIAL COURT MADE AND THEN INDICATED THAT
AS THE AUTHORITY SAID, VIOLATE ALL OF THE PROTECTIVE ORDER COULD NOT BE SUFFICIENT,
BUT WE DID NOT MAKE ANY FINDING IN THAT OPINION WITH REGARD TO THE FACTS.
LEAH A. VASSALLO: NO, BUT IT WAS -- JUSTICE
PIERRE-LOUIS: FOR ADDITIONAL FACT-FINDING. SLAS VAST THERE WAS A COMMENT,
SPECIFICALLY AND I DON'T WANT TO QUOTE IT EXACTLY, BUT I WILL BRING IT UP IN MY
REBUTTAL, IT DID MAKE A COMMENT SPECIFICALLY STATING THAT IT DID NOT APPEAR
THAT THE CRITERIA FOR PRONG 2 HAD BEEN MET. JUSTICE PIERRE-LOUIS:
WHERE DOES THE OPINION SAY THAT. LEAH A. VASSALLO: THAT'S
WHAT I AM GOING TO TRY TO FIND. IT'S NOT AN EXACT QUOTE I WANT TO FIND IT.
JUSTICE PIERRE-LOUIS: THE OPINION SAYS THE TRIAL COURT NOTED THAT
THERE WAS NO EVIDENCE. IT DOES NOT INDICATE WHAT YOU ARE SAYING.
LEAH A. VASSALLO: LET ME TAKE A LOOK BECAUSE MAYBE I AM CONFUSING IT WITH
SOMETHING ELSE BUT I AM PRETTY SURE THERE WAS A SPECIFIC STATEMENT IN THE
ORIGINAL OPINION THAT EITHER SPECIFICALLY SAID OR IMPLIED THAT IT DID NOT APPEAR
THAT PRONG 2 WOULD BE MET. THE COURT: MS. VASSALLO WE REMANDED
FOR A HEARING, WE DIDN'T END THE CASE. LEAH A. VASSALLO:
NO, I UNDERSTAND, BUT THERE WAS NOTHING NEW IN THE SECOND HEARING FROM THE
FIRST HEARING OTHER THAN THAT THREE YEARS HAD PASSED, WHICH AGAIN WOULD NOT BE THE
NORMAL CASE FOR THIS TYPE OF A RESTRAINING ORDER, IT WOULD NORMALLY BE WITHIN TEN
DAYS, BUT BECAUSE OF GOING UP AND DOWN THE APPEAL LADDER THREE YEARS LATER,
OTHER THAN THE PACKET THAT SHE SAID THERAPY CONTINUED, THERE WASN'T ANYTHING NEW.
SHE WASN'T SAYING IN THE FIRST TESTIMONY THAT IT DIDN'T CREATE ANY PROBLEMS
FOR THEIR WELL BEING AND I MEAN, IT WAS ADDRESSED IN BOTH HEARINGS SO EVEN THOUGH
THERE WAS ADDITIONAL TESTIMONY TAKEN, THERE WAS NO ADDITIONAL SUBSTANTIVE
CONTENT PROVIDED OTHER THAN THE FACT THAT THAT THREE YEARS HAD PASSED.
THE COURT: WE UNDERSTAND YOUR POSITION, ANY OTHER QUESTIONS?
LEAH A. VASSALLO: WELL, I DID JUST WANT TO POINT OUT, IT SAYS HERE IN THE LAST
SUPREME COURT OPINION AND THIS IS WHAT I THINK WAS THINKING OF, HERE THE
FACTUAL FINDINGS WHICH THE TRIAL COURT PUT ON RECORD APPEAR COUNTER TO PLAINTIFF
'S ESTABLISHING PRONG 2 OF SASPA. NOW, MAYBE THAT WAS JUST THE TRIAL COURT DIDN'T
PUT IT ON RECORD, BUT THE RECORD ITSELF DID NOT -- JUSTICE
PIERRE-LOUIS: WHICH IS WHY IT WAS REMANDED FOR ADDITIONAL FACT-FINDING. THE I
MPLICATION THAT THIS COURT MADE THE FINDING THAT THERE WAS NOT ENOUGH IS
NOT CORRECT, THAT'S WHY WE REMANDED IT FOR ADDITIONAL FACT-FINDING, FINDINGS OF
FACT BE MADE. LEAH A. VASSALLO: WELL, IT DOES SAY THAT, BUT
ALL I AM SAYING IS ALTHOUGH ADDITIONAL TESTIMONY WAS TAKEN, THERE WAS NOT ANYTHING
ADDITIONAL SUBSTANTIVE ENTERED INTO THE RECORD THAT WASN'T ALREADY THERE PR THE
FIRST HEARING. THE COURT: THANK YOU, COUNSEL. WE'LL HAVE
YOU BACK FOR REBUTTAL. LEAH A. VASSALLO: THANK YOU
CHERYL TURK WARAAS: THAT IN LIGHT OF THE EGREGIOUS ACT OF NONCOULDN'T OCOULDN'T SNS
WUL SEXUAL PN TRAGS WHICH WAS FOUND TO HAVE OCCURRED HERE, THE APPELLATE COURT WAS
ABSOLUTELY CORRECT TO FIND THAT, THAT THAT PROVIDED THE SUFFICIENT BASIS TO SATISFY THE
ISSUANCE OF A PROTECTIVE ORDER. PLANT'S ARGUE APPELLANT ARGUMENT IS FOCUSED VERY STRONGLY
ON A NEED TO FIND THAT A DEFENDANT IS A FUTURE THREAT TO A PLAINTIFF IN ORDER TO MEET
THE BURDEN OF THE POSSIBILITY OF FUTURE RISK TO THE SAFETY OR WELL-BEING OF AP ALLEGED
VIRJS BUT THE INTENT OF THE DEFENDANT IS NOT THE END OF THE INQUIRY OVEN THE QUESTION
OF THE POSSIBILITY OF FUTURE RISK. OF IT GOES -- CHIEF JUSTICE RABNER:
I'M VERY SORRY TO INTERRUPT YOU I WANT TO MAKE SURE WE HAVEN'T LOST MS. VASSALLO, WE CAN'T
SEE YOU. THANK YOU. CHERYL TURK WARAAS: IT GOES AGAINST THE PLAIN LANGUAGE
OF THE SATISFY SPA STATUTE AS MANY OF THE TO ARGUE THAT THAT THERE NEEDS TO BE AN INTENT
OF A DEFENDANT TO SHOW THE POSSIBILITY OF FUTURE RISK TO SAFETY OR WELL-BEING. WE ARE
ASKING THAT THIS COURT AFFIRM THAT THE TERM WELL-BEING DOES INDEED ENCOMPASS THE
PSYCHOLOGICAL AND EMOTIONAL HEALTH OF A SURVIVOR. AND THAT ONE WAY I WILL
AGREE WITH MS. VASSALLO THAT EVERYTHING ON THE RECORD AT THE FIRST HEARING IN 2018 WOULD
HAVE SUPPORTED THE ISSUANCE OF A FINAL PROTECTIVE ORDER. OF IT IS AS JUSTICE NORIEGA
COMMENTED, IT IS WELL KNOWN THE EFFECT OF A TRAUMA LIKE SEXUAL ASSAULT ON A VICTIM. THIS
COURT HAS NOTED THAT Z OVER AND OVER AGAIN IN OTHER CASES. AND WE ARE NOT HERE ARGUING
A CASE UNDER THE PDVA, WE ARE SRG ARGUES A CASE UNDER SASPA. THE PREVENTION OF DOMESTIC
VIOLENCE, PREVENTION OF PRIOR DOMESTIC VIOLENCE. IS THAT SO PA IS AIMED AT THE PROTECTION
OF A SURVIVOR OF SEXUAL ASSAULT. IT IS AIMED AT PROVIDING THAT PROTECTION
TO THE SAFETY, TO THEIR SAFETY OR WELL-BEING AND THE INTENT OF THE DEFENDANT TO IMPOSE
A FURTHER RISK IS NOT THE END MUCH THAT IVEN KWIR RE. INQUIRY. THE PLAIN
LANGUAGE OF THE STATUTE IS VERY CLEAR, IT'S UNAMBIGUOUS. SASPA THE STATUTE USES WORDS
THAT ORDINARY PEOPLE ARE USING IN THEIR EVERYDAY LIFE. WE UNDERSTAND WHAT POSSIBILITY
MEANS, WE UNDERSTAND WHAT A RISK TO OUR SAFETY IS, SAFETY BEING PHYSICAL, PHYSICAL DANGER
AND HE UNDERSTAND WHAT OUR WELL-BEING IS. THE STATUTE USES THE WORDS, THOSE WORDS BECAUSE
THEY WANT TO ENCOMPASS THAT ANALYSIS OF POSSIBLE RISK TO THE EMOTIONAL AND PSYCHOLOGICAL
HEALTH AND WE HAVE TO, TRIAL COURTS HAVE TO INCLUDE AN ANALYSIS OF WHAT THE EMOTIONAL
IMPACT OF THIS ACT, ANY OF THESE ACTS WOULD BE UPON A VICTIM. AT THE 2018
TRIAL, C.R. TESTIFIED THAT THIS WAS TRAUMATIC. I DON'T WANT ANYONE TO KNOW THAT THIS
HAPPENED, I LIVE WITH IS EVERY DAY. SHE WAS ALREADY TESTIFYING AS TO THOSE EFFECTS ON
HER EMOTIONAL WELL-BEING. AND IN LIGHT OF THE EGREGIOUS ACT OF NONCONSENSUAL SEXUAL
ASSAULT, THAT WAS SUFFICIENT FOR JUDGE SEEING LER TO FIND THAT A FINAL PROTECTIVE ORDER
WAS APPROPRIATE AND WHEN THE REMAND TRIAL OCCURRED P SHE TESTIFIED FURTHER TO ALL OF
THE WAYS THAT HER EMOTIONAL WELL-BEING HAD CONTINUED TO BE AFFECTED, THE WAYS THAT HER
RELATIONSHIPS HAD CONTINUED TO BE AFFECTED, THE WAY SHE WAS ALTERING HER LIFE EVERY DAY
AS A RESULT OF THE FEAR SHE WAS EXPERIENCING, THAT ILLUSTRATES THE IMPACT ON SURVIVORS,
THAT THIS TYPE OF SEXUAL ASSAULT HAS. EVEN IN 2018 THAT FIEM PROTECTIVE ORDER HEARING,
OOT LEAST THERE WAS SUFFICIENT BASIS TO MEET THE POSSIBILITY OF FUTURE SAFETY AND/OR WELL
-BEING OF AN ALLEGED VICTIM. WHEN WE LOOK AT THE LEGISLATIVE HISTORY AS
WE PROVIDED IN OUR SUPPLEMENTAL BRIEF, SASPA IS A REMEDIAL STATUTE. THE PLAIN READING
OF THE STATUTE IS THE OPENLY THING THAT'S GO LONG TO ENCOMPASS AND FACILITATE THE REMEDIAL
PURPOSE OF THE STATUTE. MS. VASSALLO WANTS THIS COURT TO APPLY STANDARDS LIKE OF IMMEDIATE
DANGER AND CONSIDER FACTORS SUCH AS THE HISTORY OF VIOLENCE OR THE LIKELIHOOD THAT SOMETHING
OF THE SAME NATURE WILL HAPPEN AGAIN. BUT THOSE ARE STANDARDS THAT OF THE CLASS OF
INDIVIDUALS THAT SASPA HAS BEEN ENACTED TO PROTECT ARE INDIVIDUALS SPECIFICALLY WHO DO
NOT HAVE RELATIONSHIP WITH ONE ANOTHER. THE LEGISLATURE CERTAINLY COULD HAVE AMENDED
THE PDVA, SHE AMENDED THE PDVA MULTIPLE TIMES TO EXPAND THE CLASS OF PERSONS THAT NEED
TO BE PROTECTED UNDER THE PDVA BUT THEY CHOSE NOT TO DO THAT, THEY CHOSE TO CREATE A
STAND-ALONE SEPARATE PIECE OF LEGISLATION AIMED AT INDIVIDUALS WHO HAVE NO RELATIONSHIP
WITH ONE ANOTHER AND, THEREFORE, THE LEGISLATURE UNDERSTOOD THAT THE LEL OF PROOFS AND
THE TYPE OF PROOFS THAT AN INDIVIDUAL IN THAT SITUATION, WITHOUT THE SAME INTIMATE
KNOWLEDGE THAT MIGHT BE PRESENT IN A DOMESTIC VIOLENCE SITUATION, WHERE THERE'S VERY
INTIMATE RELATIONSHIP, WOULD NOT BE ACCEPTABLE AND WOULD NOT THAT, STANDARD WOULD SIMPLY
PRECLUDE INDIVIDUALS FROM ACTUALLY ASSESSING THE PROTECTIONS THAT THE LEGISLATURE IS TRYING
TO PROVIDE FOR THEM. THIS COURT HAS, HAS ALSO FOUND THAT IT IS WELL KNOWN
AS AMICUS CITED IN THEIR BRIEF IN STATE VERSUS CHAM BERS THAT IT'S WELL KNOWN THAT THE
EFFECT OF SEXUAL TRAUMA TR EMOTIONAL AND THEY'RE ONGOING AND THAT THIS LEGISLATURE HAS
ENACTED MULTIPLE ENHANCED PROTECTIONS FOR SEXUAL ASSAULT VICTIMS PARTICULARLY, YOU MAKE
THE STATEMENT IN STATE VERSUS RA MERE RA WHICH IS STATED IN STATE VERSUS CHAMBERS THAT
THERE HAVE BEEN, REFERRING TO SEVERAL ENHANCED PROTECTION STATUTES IN THE CRIMINAL CONTEXT,
THAT THOSE REFLECT THE COURSE OF PUBLIC POLICY A DOMENTED BY THE VOTERS AND THE LEGISLATURE
TO ANY OF GUARD FROM PHYSICAL AND EMOTIONAL HARM. PASHGS PASHGS. P R, C.R.'S
FEAR AND HER TRAUMA ARE NOT IRRATIONAL. SHE UNDERWENT A SIGNIFICANT, THE MOST SIGNIFICANT
INVASION OF HER PERSON, A NONCONSENSUAL SEXUAL PENETRATION, AND RP IT IS KNOWN THE LONG-TERM
EFFECT OF THAT ASSAULT AS JUS CHIS NORIEGA APARTMENTED POINTED APTLY POINTED OUT, THE
REASON HE IS HE IS ALREADY ACTED TO ASSAULT, HE'S ALREADY CREATE THE THE HARM THAT IS
NOW ONGOING AND THIS LITIGATION HAS SPANNED -- JUSTICE SOLOMON: SOL CAN
I ASK YOU A QUESTION. IS THERE THEREFORE ANY INSTANCE IN WHICH PRONG 1 HAS BEEN PROVEN
THAT THE VICTIM IS NOT ENTITLED TO A FINAL ORDER HE. IS THERE ANY. CHERYL TURK
WARAAS: JUSTICE, I DO THINK THAT THE TRIAL COURT HAS THE ABILITY TO ASSESS BOTH THE ACT
THAT HAS OCCURRED AND THE POSSIBILITY OF FUTURE RISK TO SAFETY OR WELL-BEING IN A WAY THAT
THERE COULD BE INSTANCES WHERE THEY MAY FIND THAT THE LIMITATIONS IMPOSED ON THE DEFENDANT
MAY NOT BE APPROPRIATE. FOR INSTANCE -- JUSTICE SOLOMON: LIMITATION CAN BE
AS SIMPLE AS OVER AND OH A NO CONTACT ORDER, PERIOD, NOTHING MORE. IS THERE EVER AN
INSTANCE, THAT'S MY QUESTION, BASED UPON WHAT YOU SAID, I THINK THE ANSWER IS NO, BUT YOU CAN
CLARIFY IT. BASED, IS THERE EVER AN INSTANCE OF UNWANTED SEXUAL CONTENT SATISFYING PRONG
1 THAT DOESN'T MEAN A FINAL ORDER MUST BE ENTERED? BASICALLY SAYING PRONG 2 IS
UNNECESSARY? CHERYL TURK WARAAS: JUSTICE, WE ARE NOT GOING SO FAR AS T SAY
PRONG 2 IS UNNECESSARY SOL SL I'M JUST ASKING, YOU MADE THE STATEMENT, IS THERE EVER AN
INSTANCE WHEN PRONG 1 IS SATISFIED THAT PRONG 2 IS NOT AUTOMATICALLY SATISFIED, BECAUSE
THERE IS AN ONGOING MENTAL HEALTH IMPACT. CHERYL TURK WARAAS: WELL, AS
AMICUS FLUSHED OUT IN THEIR FACTORS, I THINK ONE OF THE MOST IMPORTANT THINGS THAT A COURT
IS LOOKING AT IS THE ACT ITSELF THAT HAS OCCURRED. AND SO UNDER SATISFY SPA THERE
SASPA, COULDN'T NONCONS SUL SEXUAL ACT AND LEWDNESS AND SO WE CAN SEE THAT THOSE ARE
VARYING DEGREES OF INVASION ON A PERSON'S EXPECTATION OF FREEDOM FROM INVASION OF THEIR
PERSON HOOD OR SPACE. JUSTICE SOLOMON: NO UNWANTED SEXUAL CONTACT.
THEY'RE ALL SIGNIFICANT IN THEIR MENTAL HEALTH WELL-BEING. SO MY QUESTION IS, I MEAN IF
YOU'RE SAYING IT'S POSSIBLE WHERE THERE IS A LESS, IF THERE IS SUCH A THING, INTRUSIVE
SEXUAL CONTACT, OKAY, BUT THE LEGISLATURE DIDN'T SAY THAT. JUSTICE PIERRE-LOUIS:
WHAT ABOUT THE ATTEMPT TO COMMIT ONE OF THOSE ACTS LISTED IN THIS STATUTE, THAT'S ALSO
PART OF THE PREDICATE ACT, WOULD YOU CONSIDER THE ATTEMPT TO BE, THE ATTEMPT TO COMMIT
OF LEWDNESS OR SEXUAL PENETRATION OR NONCONSENSUAL SEXUAL CONDUCT ALSO CONDUCT
THAT WOULD REQUIRE AN FPO TO ISSUE? OR IS IT THE VARYING DEGREES THAT A TRIAL COURT WOULD
HAVE TO DETERMINE BECAUSE I HAVE THE SAME QUESTION FOR ON YOUR SIDE WITH REGARD TO WHEN
ISSUE IN THESE CIRCUMSTANCES SAYS SPECIALLY IN NONCONSENSUAL SEXUAL CONTACT OR PENETRATION.
CHERYL TURK WARAAS: YES, JUSTICE T OUR POSITION IS THAT CERTAINLY A TRIAL
COURT HAS AND MUST THE ABILITY TO ASSESS THE TESTIMONY THAT'S BEFORE THEM, THE EVIDENCE
THAT'S BEFORE THEM AND MAKE A DETERMINATION WHEN BALANCING THE NEED TO PROTECT THE SURVIVOR
AND THE LIMITATIONS THAT ARE GOING TO BE IMPOSED UPON THE DEFENDANT. SO, FOR INSTANCE,
IN A SITUATION OF LEWDNESS OR AN ATTEMPT AT LEWDNESS, I THINK THAT THERE ARE SCENARIOS
WHERE IF THAT IF, THE LITIGANT IS, YOU KNOW, AN ADULT AND IS TESTIFYING THAT THIS HAS
NOT NECESSARILY AFFECTED THEIR WELL ME BEING OR NOT PROVIDED ANY SPECIFIC WAYS IT'S AFKTDING
THEIR WELL-BEING. JUSTICE PATTERSON: YOU'RE SAYING IF PRONG 1 IS MET, FOLLOWING
UP ON JUSTICE SOLOMON'S QUESTION, AND THE PLAINTIFF DOES NOT SAY SPECIFICALLY MY WELL
-BEING HAS NOT BEEN AFFECTED, THEN PRONG 2 IS MET? CHERYL TURK WARAAS: NO,
JUSTICE. JUSTICE PATTERSON: DO YOU AGREE WITH THE COURT'S COMMENT IN THE
EARLIER OPINION THAT JUST APPLYING FOR A PROTECTIVE ORDER IS NOT SUFFICIENT?
CHERYL TURK WARAAS: YES, JUSTICE. OF. JUSTICE PATTERSON: I'M SORRY,
PLEASE GO AHEAD. CHERYL TURK WARAAS: AND WHAT THIS COURT SAID IN C.R. IS
THAT THE JUDGE'S FINDINGS, I THINK JUSTICE WAS POINTING THIS OUT, THE FINDINGS THAT THE
JUDGE MADE REGARDING THE EVIDENCE BEFORE HIM WAS NOT SUFFICIENT, THAT THAT'S THE OPENLY
FINDING HE SEEMED TO MAKE TO MAKE THE POSSIBILITY OF FUTURE RISK TO THE SAFETY OR WELL
-BEING WAS THAT ARE THIS RESTRAINING ORDER, THAT M.T. MAY BE UPSET OR ANGRY ABOUT THITS
RESTRAINING OR, BUT THIS COURT DID NOT SAY THERE WAS NOT SUFFICIENT EVIDENCE ON THE RECORD,
IT WAS THAT THE JUDGE HAD NOT MADE THE FINDINGS. JUSTICE PATTERSON: SO
IF PRONG 1 IS MET AND IF THE, AND THEN THE VICTIM SEEKS A PROTECTIVE ORDER, CONTINUES
TO SEEK PROTECTIVE OR AND THE VICTIM DOESN'T DISCLAIM ANY, DOESN'T SAY I'VE HAD IN
PROBLEMS WITH MY WELL-BEING, I'M JUST FINE, I ASSUME THAT WOULD BE AN UNUSUAL CIRCUMSTANCE,
AND THE VICTIM MAKES AN ALLEGATION OF IMPACT ON WELL-BEING, AND PRUNL BLEE THE JUDGE
DOESN'T FIND THAT VICTIM POB INCREDIBLE, IS THAT ENOUGH? SEE WHAT THE ISSUE IS THIS COURT
NOT OPENLY HAS TO SOFRL THIS CAN I SAY BUT PROVIDE SOME GUIDANCE IN THE FUTURE FOR THE
JUDGES WHO WILL BE DEALING WITH THESE APPLICATIONS. SO WHAT CROSSES
THE THRESHOLD AS TO PRONG 2, ASSUMING PRONG 1 IS MET AND ASSUMING THE VICTIM DOESN'T TESTIFY,
WELL, I DON'T KNOW WOI I'M HERE BECAUSE THIS DOESN'T AFFECT ME AT ALL AND I REALLY DON'T
NODE A PROTECTIVE OR, WHICH I WOULD FIND VERY STRANGE IF IT HAPPENED. OF WHAT'S NECESSARY
THEN? CHERYL TURK WARAAS: YES, JUSTICE. AND AS YOU'RE POINTING OUT, WE ARE
IN THESE SITUATIONS WHERE THE LIKELIHOOD THAT SOMEONE WHO IS APPLYING IN THIS ADVERSARIAL
CONTEXT FOR A PROTECTIVE ORDER IS LIKELY GOING TO BE THE INDIVIDUAL WHO HAS BEEN SIGNIFICANTLY
AFFECTED AND/OR BEEN EXPOSED TO ONE OF THE MORE SIGNIFICANT ACTS OF -- JUSTICE
PATTERSON: RESPECTFULLY, WE CAN'T MAKE ASSUMPTIONS THAT SOMEONE WHO BRINGS AN
APPLICATION IS RIGHT BECAUSE PEOPLE BRING APPLICATIONS THAT ARE MERITORIOUS AND PEOPLE
BRING APPLICATIONS THAT ARE NOT MERITORIOUS, WE NODE TO KNOW WHAT DOES THE LEGISLATURE
ENVISION ABOUT PRONG 2. THAT'S WHY WE ARE HERE. SO WHAT WOULD YOU SAY IS
THE QUALITY OR QUANTITY OF EVIDENCE THAT'S NECESSARY AND QUANTITIES OF EVIDENCE THAT'S
FLESZ TO SATISFY PRONG 2 ASSUMING THAT PRONG 1 IS MET? CHERYL TURK WARAAS:
I THINK THAT, THAT'S WHERE, AN INDIVIDUAL PLAINTIFF IS PROVIDING CREDIBLE TESTIMONY AS
TO THE SPECIFIC WAYS THAT THEIR WELL-BEING IS BEING AFFECTED, SPECIFIC WAYS THAT THEIR
LIFE IS BEING ALTERED, AS C.R. HAS DONE HERE, WHERE THEY ARE PROVIDING, AND WOULD ALSO
INCLUDE THINGS IN TERMS OF ACTS THE DEFENDANT MAY HAVE DONE IN AN ONGOING ATTEMPT TO MAKE
CONTACT OR ATTEMPT TO COMMIT FUTURE ACTS, BUT THE STATUTE IS OR WELL-BEING. SO I THINK
THAT WERE A LITIGANT IS CREDIBLY TESTIFYING TO THE SPECIFIC WAYS THAT THEIR WELL BEING
IS AFFECTED, THAT THAT IS SUFFICIENT. CHIEF JUSTICE RABNER: CAN WE GO BACK
AND YOU HELP US CLARIFY YOUR POSITION, IS INSUFFICIENT TO GATE PRO PEKT TIFF ORDER FOR
THE APPLICANT TO SATISFY ONLY PRONG 1, FINAL PROTECTIVE ORDER? CHERYL TURK
WARAAS: NO. OUR POSITION IS THAT THE PLAIN READING OF THE STATUTE, THE PLAIN LANGUAGE
OF THE STATUTE DOES INCLUDE THE COURT CONSIDERING THE POSSIBILITY OF FUTURE SAFETY OR
WELL-BEING OF THE ALLEGED VICHLT. IT IS OUR POSITION THAT THE NATURE OF THAT
ACT, SPECIFICALLY HERE WITH C.R., WITH NONCONSENSUAL SEXUAL PENETRATION, UNDER THE
PDVA, NONCONSENSUAL SEXUAL PENETRATION IS SUFFICIENT TO MAKE THE NEED FOR AN IMMEDIATE,
TO MAKE IMMEDIATE DANGER OBVIOUS AND SELF EVIDENCE DEPARTMENT FOR A RESTRAINING ORDER
TO ISSUE. UNDER. JUSTICE FASCIALE: CAN I JUST FOLLOW UP ON YOUR RESPONSE.
HOW DO YOU SWEAR THAT SQUARE PARAGRAPH E. CHIEF JUSTICE RABNER: CAN YOU
FINISH YOSH RESPONSE B WE MOVE ON TO E. UNDER SASPA. CHERYL TURK WARAAS:
UNDER SASPA, A NONCOULDN'T SNS SENSUAL SEXUAL PENETRATION SHOULD ALSO BE SELF-EVIDENT
TO CREATE A POSSIBILITY OF FUTURE RISK TO THE SAFETY OR WELL-BEING. SO IT IS OUR POSITION
THAT THERE, THE NATURE OF THE ACT CAN MAKE PRONG 2 SELF-EVIDENT. JUSTICE WAINER
APTER: LEWDNESS IS THE ONLY EXCEPTION OR DO YOU FIND THE DIFFERENCE BETWEEN NONCONSENSUAL
SEXUAL CONDUCT, I'M JUST READING NUMBER 1 AND I'M TRYING TO FIGURE OUT WHERE SPECIFICALLY
IF PRONG 1 IS PROVEN AS THE CHIEF JUSTICE AKD WOULD PRONG 2 NOT AUTOMATICALLY BE SELF
-EVIDENT AND IS YOUR ANSWER ONLY IN CASES OF LEWDNESS OR ATTEMPTED LEWDNESS?
CHERYL TURK WARAAS: NO, JUSTICE, THERE ARE CERTAINLY VARYING DEGREES OF NONCONSENSUAL
SEXUAL CONTACT AS WELL. AGAIN I THINK THAT THE TRIAL COURT IS THE BEST PLACE FOR THOSE
FACTS TO BE APPLIED. JUSTICE WAINER APTER: THANK YOU. CHERYL TURK
WARAAS: JUSTICE FAS CAN YOU REPEAT YOUR EGS. JUSTICE FASCIALE: I THINK
YOU ANSWER TO THE CHIEF'S QUESTION IS IF THE VICTIM PROVES THAT THE DEFENDANT COMMITTED
THE PREDICATE ACT, BUT THE VICTIM FAILS TO PROVE A POSSIBILITY OF FUTURE RISK TO THE
SAFETY OR WELL-BEING OF THE ALLEGED VICTIM, AND WOULD FILE A PRO A FINAL PROTECTIVE ORDER
SHALL NOT ISSUE, AM I CORRECT THAT THAT'S YOUR POSITION? CHERYL TURK WARAAS:
YES, JUSTICE. JUSTICE FASCIALE: HOW DO YOU SQUARE THAT ANSWER WITH
SUBPARAGRAPH E THAT SAYS A FINAL PROTECTIVE ORDER SHALL BE ISSUED ONLY AFTER A FINDING
OR AN ADMISSION IS MADE THAT THE RESPONDENT COMMITTED THE, ESSENTIALLY THE PREDICATE ACT?
CHERYL TURK WARAAS: JUSTICE, THIS IS ONE AREA WHERE WE WOULD HAVE SOME
AGREEMENT WITH MS. VASSALLO'S POSITION WHICH IS THAT WE DO READ SECTION E AS REQUIRING
A PREDICATE ACT TO HAVE BEEN FOUND OR ADMITTED TO BE OCCURRED. THAT WOUTD THAT, A PROTECTIVE
ORDER CANNOT ISSUE. JUSTICE FASCIALE: SO -- GO AHEAD CHIEF.
CHIEF JUSTICE RABNER: OTHERWISE YOU READ IT ASSETING FORTH A PREREQUISITE BUT THE DOESN'T
MAKE THE DPRANTING OF A FINAL PROTECT CIVILIAN OR RS A FINAL PROTECT CIVILIAN ORDER AUTOMATIC. CHERYL TURK WARAAS: THAT IS OU WE READ IT. JUSTICE PIERRE-LOUIS:
TO BE ISSUE BUT GOING BACK TO SEK A THE DIRECT THE COURTS THAT THE COURT SHALL CONSIDER
THESE TWO FACTORS AND POSSIBLY OTHER FACTORS BUT IF AN ORDER IS GOING TO ISSUE, IT CAN'T
POSSIBLY ISSUE IF THE FINDING OF THE PREDICATE ACT HAD NOT BEEN. CHERYL TURK
WARAAS: YES JUSTICE, EXACTLY. AND WE DO AGREE WITH THE STATEMENT THAT JUSTICE FASCIALE HAS BEEN MAKING WHICH IS THAT THAT POSSIBILITY OF FUTURE RISK TO THE SAUF TIE OR WELL
PROTECTIVE ORDER AGAINST THE DEFENDANT AND SO CERTAINLY THEY ARE GOING TO, AT A BARE
MINIMUM, THE PROTECTION CAN BE NO CONTACT WITH THE VICTIM, RIGHT, BUT THERE ARE OTHER MORE
SIGNIFICANT AND IN CERTAIN CIRCUMSTANCES RESTRICTIONS THAT COULD BE SIGNIFICANT
AGAINST THE DEFENDANT AND I THINK THAT THAT PRONG 2 IS A POSSIBILITY OF FUTURE RISK IS
CERTAINLY THERE TO SPEAK INTO WHAT TYPES OF RESTRICTIONS AND LIMITATIONS SHOULD BE
CRAFTED INTO A PROTECTIVE OR. JUSTICE NORIEGA: COUNSEL, GIVEN THE FACT
THAT WELL-BEING IS NOT DWRIEND AND IT IS A SOMEWHAT AMORPHOUS TERM AND MOSTLY SUBJECTIVE
FROM THE POINT OF VIEW OF THE PLAINTIFF, WOULD YOU HAVE AN OBJECTION TO OBJECTIVE EVIDENCE
BEING REQUIRED IN ORDER TO SUPPORT A FINDING OF WHERE WHERE SOMEBODY'S HE WILL BEING IS
WHEN THEY'RE REQUESTING THE ORDER? CHERYL TURK WARAAS: YES, JUSTICE, BECAUSE
UNDER SASPA THE FINAL PROTECTIVE HEARING IS BEING TAKEN PLACE IN 10 DAYS FROM THE ISSUES
WANS OF THE TEMPORARY PROTECTIVE ORDER AND FOR AN INDIVIDUAL TO ACHIEVE, IF WE'RE TALKING
ABOUT ESPECIALLY EVIDENCE OF MENTAL HAELT MG AND MENTAL WELL-BEING, THAT IS SIMPLY NOT
GOING TO BE POSSIBLE. TO EVEN ACCESS COUNSELING CAN TAKE WEEKS OR MONTHS.
SO, AND CERTAINLY TO ACHIEVE A MENTAL HEALTH DIAGNOSIS WOULD BE MUCH FURTHER OUT THAN
JUST 10 DAYS FROM AN INCIDENT. SO TO REQUIRE EXPERT TESTIMONY OR MEDICAL
EVIDENCE OR MENTAL HEALTH TREATMENT EVIDENCE, AS C.R. WAS ABLE TO DO BECAUSE OF THE LITIGATION
HAS BEEN GOING ON FOR SO LONG, THAT WOULD CUT OFF MANY SURVIVORS FROM THAT PROTECTION.
I DO NOT BELIEVE THAT'S THE LEGISLATURE'S INAT THE PRESENT TIME HERE. JUSTICE
PATTERSON: DOES THE TRIAL COURT HAVE THE DISCRETION TO DELAY THE HEARING ON THE FINAL
PROTECTIVE ORDER IN ORDER TO GIVE A LITIGANT ONE OR THE OTHER OR BOTH TIME TO GET AN EXPERT
TO COME IN? CHERYL TURK WARAAS: YES, JUSTICE, THE TRIAL COURT DOES HAVE
DISCRETION TO ADJOURN THE MATTER AND PROVIDE A LATER DATE, YES. JUSTICE
FASCIALE: I THOUGHT THE HEARING SHALL BE HELD WITHIN 10 DAYS. CHERYL TURK
WARAAS: YES, JUDGE, THE HEAR LONG SHALL BE HELD, HOWEVER, THE JUDGE WOULD STILL, THE
TRIAL COURT WOULD STILL HAVE DISCRETION TO ENTER A CONTINUANCE. CHIEF JUSTICE
RABNER: COUNSEL CAN I ASK A KWEKT 0 A DIFFERENT TOP HICK OTHER CASE LOOK TO THE TESTIMONY
OF THE VICTIM AND IN ORDER TO MAKE A DETERMINATION ABOUT WHETHER A FIEM ORDER
SHOULD ISSUE AND HOW TO EVALUATE THE PRONGS. IN DOING SO, SHOULD THEY CONSIDER
THE OBJECTIVE REASONABLENESS OF THE TESTIMONY? CHERYL TURK WARAAS: JUSTICE,
I WANT TO ANSWER CAREFULLY HERE BECAUSE, THE EFFECT ON A SURVIVOR'S WELL-BEING IS VERY
INDIVIDUAL. IT WOULD SPEAK INTO MAYBE THINGS THAT HAVE OCCURRED IN THEIR PAST. IN TORT
LAW WE TAKE OUR VICTIM AS WE FIND THEM, RIGHT? SO T I WOULD NOT URGE A READING THAT THE
JUDGE SHOULD DETERMINE WHETHER A REASONABLE PERSON WOULD HAVE THESE EFFECTS ON THEIR
EMOTIONAL WELL-BEING, BUT IF THEY ARE ASSESSING THE TESTIMONY OF THE SURVIVOR TO BE CREDIBLE
AS TO WHAT THEY ARE EXPERIENCING AS A RESULT OF THE ACT THAT THEY WERE SUBJECTED TO, I
BELIEVE THAT THAT SHOULD BE ENOUGH TO SATISFY THE POSSIBILITY. CHIEF JUSTICE
RABNER: SO SUPPOSING THE CAVES A TECHTED LEWD NIS, FOR EXAMPLE AND THE VICTIM TESTIFIED
SINCERELY, HONESTLY ABOUT THE IMPACT THAT IT'S HAD ON THEM, BUT THE JUDGE'S REVIEW OF THE
UNDERLYING INCIDENT LEADS TO A CONCLUSION THAT THE TESTIMONY IS NOT REASONABLE, IS THAT
AN APPROPRIATE BASIS NOT TO GRANT THE ORDER? CHERYL TURK WARAAS: NO, JUSTICE.
IF THE JUDGE, THE TRIAL COURT IS FINDING THAT THAT TESTIMONY IS CREDIBLE, I THINK THAT
THEY WOULD NEED TO FIND THE POSSIBILITY OF RISK TO THE WELL-BEING IS SUFFICIENT THERE
TO ISSUE THE PROTECTIVE ORDER. THERE ARE MANY CIRCUMSTANCES IN A PERSON'S LIFE THAT WOULD
CAUSE AN ACT OF LEWDNESS, FOR INSTANCE, TO BE MORE IMPACT FULL ON THEIR WELL-BEING, WHETHER
IT'S A CULTURAL REASON OR RELIGIOUS REASON OR AGAIN AS I HAD REFERENCED RTS MAYBE THINGS
THAT HAD OCCURRED IN THEIR PAFRT OR, YOU KNOW, THEIR CHILDHOOD TRAUMAS THAT THIS IS
TRIGGERING SOMETHING NEW. SO IT HAS TO BE INDIVIDUAL TO THE SURVIVOR'S WELL BOWING, AND
IF THEY'RE TESTIFYING CREDIBLY AS TO THE, THOSE SPECIFIC OF WAYS THAT THEY'RE IMPACTED,
I THINK THAT THAT MUST BE THE STANDARD OF POSSIBILITY OF FUTURE RISK.
CHIEF JUSTICE RABNER: THANK YOU. OF OTHER QUESTIONS, ANYONE. JUSTICE
FASCIALE: ONE QUICK FOLLOW UP. A O C LANGUAGE PERFUNCTORY AND SELF-EVIDENT.
CHERYL TURK WARAAS: YES, JUSTICE MENT WE ARE ASKING THAT THE COURT ISSUE GUIDANCE THAT
AN ACT OF FORCE IS SELF HE HAVE DEPARTMENT AND PERFUNCTORY. THAT IS WHAT WOULD BE REQUIRED
UNDER THE PDVA. WE FLEED TO LANGUAGE, WE NEED TRIAL COURTS TO UVENDZ AND WE'RE ASKING
THE COURT TO ISSUE THE GUIDANCE THAT AN ACT OF FORCE JUST AS IT WOULD UNDER THE PDVA HERE
UNDER SASPA WOULD SATISFY THE LOWER BURDEN OF POSSIBILITY OF FUTURE RISK TO THE SAFETY
OR WELL-BEING. FAS NAS WOULD ONLY APPLY TO NONCONSENSUAL SWAM CONTACT AND NONCONSENSUAL
SEXUAL PEN TRACE, NOT MRUDNESS OR THE ATTEMPT TO COMMIT THOSE THREE PREDICATE ACTS?
CHERYL TURK WARAAS: I THINK IT COULD OCCUR TO ANY OF THE THREE ACTS THAT
THERE WAS ACT OF FORCE USED IN CONJUNCTION WITH ANY OF THE ACTS. HOWEVER, CERTAIN ACTS
SUCH AS NONCONSENSUAL SEXUAL PENETRATION BY ITS VERY FLACH CHER IS A FORCE, IT IS VIOLENCE,
RIGHT, SO, YES, I WOULD AGREE, JUSTICE, THAT IN EVERY INCIDENT OF NONCONSENSUAL SEXUAL
PEN TRASHGS A PROTECTIVE ORDER SHOULD ISSUE, THAT THE RISK TO THE SAFETY OR WELL-BEING
OF THE VICTIM IS SELF-EVIDENT AS IT IS HERE IN THE CASE OF C.R. CHIEF JUSTICE
RABNER: ANY OTHER QUESTIONS. JUSTICE PATTERSON: JUST ONE FOLLOW UP ON THAT.
SO ARE YOU SAYING IN THOSE SETTINGS, PRONG 2 DOESN'T HAVE TO BE PROVEN OR
ARE YOU SAYING IT'S AUTOMATICALLY PROVEN BY THE ACT SELF AND NOTHING MORE?
CHERYL TURK WARAAS: YES, IT IS SAYING IT IS AUTOMATICALLY PROVEN BY THE ACT BECAUSE WE
KNOW AND THIS COURT AGAIN HAS ACKNOWLEDGED THAT AT THIS POINT IT IS A UNIVERSAL FACT THAT
THOSE WHO HAVE EXPERIENCED A SEXUAL ASSAULT EXPERIENCE ONGOING EFFECTS TO THEIR HEALTH
AND THEIR WELL-BEING. AND SO IT IS SELF-EVIDENT THAT IF AN INDIVIDUAL HAS BEEN SUBJECTED
TO AN ACT OF FORCE SUCH AS SEXUAL PENETRATION, NONCONSENSUAL SEXUAL PENETRATION, IT IS
SELF HE HAVE DEPARTMENT THAT THERE IS A POSSIBILITY OF FUTURE RISK TO THEIR SAFETY OR
WELL-BEING. CHIEF JUSTICE RABNER: ANYTHING ELSE WOULD LIKE TO ADD?
CHERYL TURK WARAAS: NO, JUDGE, WE'LL REST ON OUR PREVIOUS. THANK YOU, NEXT HEAR FROM
C.J. GRIFFIN. C.J. GRIFFIN: GOOD MORNING, MAY IT PLEASE THE COURT. THERE ARE
A FEW PIECES OF INFORMATION IN CONTEXT THAT I WANT TO PROVIDE BECAUSE I THINK IT'S
IMPORTANT. THE FIRST IS THE RANG WITCH THAT WE'RE USING BECAUSE I THINK
LANGUAGE REALLY MATTERS HERE. AND SO THE LAST QUESTION WAS BY JUSTICE PATTERSON AND YOU
WERE TALKING ABOUT PRONGS. AND I THINK JUSTICE FASCIALE'S DISCUSSION OR QUESTIONS IN THE
BEGINNING WAS SPOT ON AND IN ALIGNMENT WITH THE PLAIN LANGUAGE THE STATUTE. SO THE
LEGISLATURE SAID THE COURT SHALL KSH BUT NOT BE LIMITED TO THE FOLLOWING FACTORS AND TO
ME USING THE WORDS FACTORS VERSUS PRONGS IS REALLY IMPORTANT BECAUSE PRONGS SUGGEST TO BE
ELEMENTS WHICH MEANS BOTH MUST BE SATISFIED, BUT FACTORS ARE THINGS THAT WE LOOK AT AND
THE COURT SHOULD LOOK, MUST LOOK AT THESE TWO THINGS. IT DOESN'T MEAN THEY MUST BOTH
BE SATISFIED. THE ONE THAT MUST BE SATISFIED IS THE FIRST FACTOR. AND SO OUR POSITION
IS THAT ESPECIALLY THE STANDARD AN EGREGIOUS ACT MAKES THE FINDING OF A PROTECTIVE ORDER
SELF EFT DENT AND PERFUNCTORY. THE SECOND THING I WANT TO TALK ABOUT IS
FACTUALLY MOST RAPE AND MOST SEXUAL ASSAULT IS NOT REPORTED. I THINK THE STATISTICS SHOW
MAYBE 20 PERCENT IS RECORDED AND SO WHEN WE ARE TALKING ABOUT THE FACT THAT SOME, THAT
THE STANDARD MIGHT BE VERY LOW FOR OBTAINING THE ORDER AND THAT IT MIGHT BE DIFFICULT
TO THIS OF A SITUATION WHERE THE PERSON IS IMPACTED AND THE ISSUE IS PERFUNCTORY, WE
HAVE TO PUT IT IN THAT CONTEXT WHERE THE MAJORITY OF PEOPLE WHO HAVE SUFFERED FROM ONE
OF THESE PREDICATE ACTS WOULD NOT GO TO THE POLICE AND THEY WERE NOT GO TO THE COURT.
THEY SUFFER SILENTLY. THEY DON'T BELIEVE THERE'S HOPE, THEY FEEL DEEP SHAME AND SO I THINK
THAT'S IMPORTANT CONTEXT. ANOTHER PIECE OF IMPORTANT CONTEXT --
JUSTICE PATTERSON: CAN I DOES A QUESTION TO FOLLOW UP ON YOUR FIRST POINT FRLT SO ARE YOU
TAKING ISSUE WITH THE COURT'S COMMENTS ABOUT PRONGS? C.J. GRIFFIN: YES,
AND I THINK MS. LANGUAGE WITHOUT THING ABOUT IT, BUT I WHEN I LK AT THE SECOND FACTOR
WHEN I LOOK AT THE CASE THE SECOND TIME I NOETSDZ IT SAID FACTORS, I WASN'T FAMILIAR WITH
THE PD SKRCHLT A AS MUCH THE FIRST TIME I BRIEFED THIS CASE AND SO IN THAT STATUTE ALSO
CALLS FACTORS AND IT MADE SENSE TO ME WHEN YOU'RE BE LOO K AT FACTORS, NOT ALL FACTORS
HAVE TO BE SATISFIED AND ESPECIALLY FOR EGREGIOUS ACTS OF ONE OF THESE PREDICATE ACTS
THAT IT MAKES SENSE THAT IT WOULD BE PERFUNCTORY ABOUT CERTAIN THINGS LIKE NONCONSENSUAL
SWALT PENETRATION WHICH IS, YOU KNOW, A LAWYER WAY OF SAYING SOMETHING LIKE THAT RAPE
THAT THAT IS GOING TO CAUSE A SORT OF EGREGIOUS HARM THAT NECESSARILY WILL IMPACT YOUR
WELL-BEING AND MAKE ISSUANCE THE PROTECT CIVILIAN ORDER PERFUNCTORY. JUSTICE
FASCIALE: CAN I JUST FOLLOW UP ON THAT WITH YOU, COUNSELOR, ON PDVA. OBVIOUSLY SILVER
POINTED OUT THAT WHEN THE FRO JUDGE IS CONSIDERING WHETHER AN ACT OF DOMESTIC
VIOLENCE OCCURRED, THE FRO JUDGE SHOULD CONSIDER TWO OF THE SIX FACTORS, HISTORY OF DOMESTIC
VIOLENCE AND IMMEDIATE DANGER TO PERSONAL OR PROPERTY. SILVER ALSO SAYS WHEN FRO JUDGE
CONSIDERS WHETHER AN FRO IS NECESSARY TO PROTECT THE VICTIM FROM IMMEDIATE DANGER OR FUTURE
ABUSE, THE COURT SAID THE FRO JUDGE CONSIDERS ALL SIX FACTORS. OBVIOUSLY
ALL SIX ARE NOT RELEVANT TO BETTER AN ACT OF DOMESTIC VIOLENCE OCCURRED. CLEARLY DOCUMENT
NUMBER 3 IN THE PDVA ACT DEAL WITH THE FINANCIAL CIRCUMSTANCES IS IRRELEVANT TO WHETHER
THE INDIVIDUAL COMMITTED AN ACT OF DOMESTIC VIOLENCE. AND SO ON. AND DETERMINING
CUSTODY AND PARENTING TIME. THESE ARE AS THE STATUTE READS FACTORS AND AS THE SILVER COURT
REFERRED TO THEM AS FACTORS, SOME ARE RELEVANT TO ONE ELEMENT OF THE APPLICATION FINAL
PROTECTIVE ORDER AND TIENL RESTRAINING ORDER AND SOME ARE NOT. AM I RIGHT
ABOUT THAT? C.J. GRIFFIN: YES AND I THINK THE REASON WHY, THE REASON WHY
A COURT SHOULD CONSIDER THE POSSIBILITY OF FUTURE TO THE SAGE FEAR SAFETY OR OF THE WELL
-BEING OF THE VICTIM IS FASHIONING THE REMEDY, SO IF IT IS A CIRCUMSTANCE WHERE THEY WSHG
TOGETHER, THEN THE REMEDY WOULD GO INTO PARAGRAPH F WHERE IT MIGHT BE, YOU KNOW, SOME
SORT OF REMEDY AROUND WORKPLACE. BUT IF THE REMEDY, IF THEY ARE, A SITUATION LIKE THIS
WHERE THEY DON'T, THEY'RE NOT GOING TO ENCOUNTER EACH OTHER IN SOME SPECIFIC PLACE, THEN
THE REMEDY AND WHAT YOU'RE SEEKING IS IS REALLY DON'T CONTACT ME AND DON'T COMMIT THIS
PREDICATE ACT AGAINST ME AGAIN. AND SO THAT'S WHERE I THINK THE FACTOR IS
RELEVANT. WHAT THE RESTRAINT WOULD BE. ANOTHER PIECE OF IMPORTANT CONTEXT
WAS THAT THE COURT RELEASED RECENTLY IT WAS IN THE REPORT ABOUT THE PREVENTION OF DOMESTIC
VIOLENCE ACT BUT THERE'S A SECTION ON SASPA SO GOING BACK TO WHAT I ISAID ORIGINALLY,
IN 2021 WHICH THE REPORTING PERIOD, THERE WERE ONLY 107 SASPA CASES, SO VERY FEW PEOPLE
ARE SEEKING THIS RELIEF. AND SO IT DOES MAKE SENSE TO ME THAT THE PEOPLE
THAT ARE BRAVE ENOUGH TO COME FORWARD PROBABLY ARE EXPERIENCING SIGNIFICANT AND THEIR
WELL-BEING IS HARMED AND OF THAT 107 KATSZ, 44 PERCENT OF THEM ARE CHILDREN UNDER THE
AGE OF 8. AND SO I DIDN'T HAVE THOSE STATISTICS WHEN I WROTE MY BRIEF AND I FOCUSED HEAVILY
UPON EE EGREGIOUSNESS BEING THE NATURE OF THE ACT SUCH AS RAPE, BUT I THINK WHERE A CHILD
IS INVOLVED, THEN OTHER PREDICATE ACTS COULD ALSO BE EGREGIOUS. SO ANY OF
THE PLED KIT ACTS WHEN A CHILD IS INVOLVED A COURT MIGHT FIND THEM TO BE EGREGIOUS. I
THINK THE COURT NEEDS DISCRETION TO LOOK AT THE FACTS AND SISHSS AND TO FASHION THEIR REMEDY
APPROPRIATELY. AND FINALLY, I THINK THE CONTEXT OF WHEN THESE HEARINGS TAKE
PLACE IS REALLY IMPORTANT. WE HAVE THE BENEFIT, I DON'T LIKE USING THE WORD BENEFIT,
BUT WE HAVE THE CIRCUMSTANCES HERE WHERE WE'RE SEVERAL YEARS OUT AND SO WHEN C.R. TESTIFIED
THE SECOND TIME IT WAS, YOU KNOW, THREE YEARS SINCE THE THE INITIAL HEARING AND SHE CAN
TALK ABOUT THE I AM FACT IT'S HAD ON HER OVER THE COURSE OF TIME, THE TREEM SHE HAD HAD,
THOSE SORT OF THING, BUT ORDINARILY, THE HEARING IS WITHIN 10 DATES OF THE T P O, AND
GENERAL THAT WOULD BE WITHIN A FEW DAYS OF THE INCIDENT AND SO YOU MIGHT DEEPLY TRAUMATIZED
BY THIS ACT OF SEXUAL VIOLENCE AND NOT YET HAVE SPOT TREATMENT KSZ YOU MIGHT NOT HAVE, MAYBE
YOU HAVE SOME BUT YOU HAVEN'T BEEN ABLE TO GET IN, MENTAL HEALTH PROFESSIONALS, YOU MAY NOT
KNOW THE SCOPE OF EXACTLY HOW IT'S IMPACTING YOU OTHER THAN YOU FEEL VERY TRAUMATIZED
AND DEEPLY IMPACTED BY IT AND YOU FEEL A NEED FOR PROTECTION. AND SO THERE WAS
A QUESTION, MAYBE IT WAS BY YOU JUSTICE PATTERSON, BY DELAYING THE HEARING FOR
EXPERTS. THAT IS PROBLEMATIC IN THE SENSE THAT NOT, THAT THAT'S A COST TO THE VIRJS THEY
MAY NOT HAVE, IT'S BURDEN THAT THE LEGISLATION DID NOT CORP. 48 INTO THE SFACHT. MY CLIENT
ALSO ADVISED ME IN THEIR EXPERIENCE A FAIRLY LARGE PERCENT EFRP OF PEOPLE SEEKING THE
ORDERS DON'T SPEAK ENGLISH AS THEIR FIRST LANGUAGE. I THINK WHEN YOU LOOK AT THE
STATUTE, THE REPORTING THAT'S REFERENCED, A FAIRLY LARGE NUMBER OF THE VICTIMS ARE VICTIM
OF COLOR. SO THAT SUGGESTS TO ME THAT MAYBE SOME PEOPLE GO TO COURT TO GET PROTECTIVE
ORDER IN LIEU OF GOING TO THE PLEADS BECAUSE THEY MAY NOT TRUST THE POLICE OR THINK THERE ARE
IMMIGRATION CONSEQUENCES IN INTERACTING WITH THE POLICE SO I THINK THOSE ARE PORPTS CONTEXTS
FOR THE COURT TO KEEP IN MIND. AND. CHIEF JUSTICE RABNER:
PLEASE GO AHEAD. C.J. GRIFFIN: OKAY. CHIEF JUSTICE RABNER:
I THAT HAD YOU MORE TO SAY. I COULD GO ON BUT IF THE COURT DOESN'T HAVE QUESTIONS. RAUB
MS. MILK NAN NUS SMITH MARY M. MC MANUS-SMITH: THANK YOU, YOUR HONORS.
IN THE CONSPIRACY IET OF THIS THING IN OCTOBER AS TO. RATHER THAN THE
RESULTING HARM, I THINK THE MORE APPROPRIATE WAY TO LOOK AT IT WOULD BE, AND, AGAIN,
IN LIGHT OF THE STATISTICS THAT WAS BROUGHT BY THE OTHER AMICUS, THE AGE DISABILITY OR
OTHER VULNERABILITY OF THE VICTIM I THINK GETS MORE AT WHAT WE WERE TRYING TO GET AT THERE
AND ALSO DOESN'T HAVE A PROBLEM OF TRYING TO SQUARE WITH 2C:14-16 B ABOUT NOT DENYING
PROTECTIVE ORDER BASED ON THE ABSENCE OF SIGNS OF BLANK INJURY. THE OTHER
COMMENT I WOULD MAKE IS JUST THAT WE WOULD WHOLEHEARTEDLY ADOPT THE ANALYSIS THAT JUDGE
FASH DETAILED AT THE BEGINNING OF THE ARGUMENT. THE COURT: COUNSEL, CAN
I ASK YOU A QUESTION ABOUT THE LISTING OF FACTORS GENERALLY SPEAKING THAT YOU HAVE IN
YOUR BRIEF. FROM TIME TO TIME, THE COURT, OF COURSE, OUTLINES LISTS FACTORS
IN ORDER TO PROVIDE GUIDANCE. HERE, HOWEVER, THE LEGISLATURE INCLUDED A LIST
OF FACTORS FOR THE PROSECUTOR'S FILE P V DA BUT DID NOT DO THE SAME FOR SASPA. UN
THOSE CIRCUMSTANCES IS IT APPROPRIATE FOR THE COURT TO COME UP WITH A LIST OF FACTORS.
MARY M. MC MANUS-SMITH: CERTAINLY, THIS COURT HAS A LONG HISTORY OF LOOKING
AT STATUTES THAT MAY TEND TO CAUSE SOME -- CAUSING LACK OF CLARITY IS NOT RIGHT, BUT
THEY ARE A LITTLE BIT MORE DIFFICULT. I REFERENCED IN OUR BRIEF THE 1986 DECISION,
DYFS VERSUS A W WHERE MOST STATES DETAILED -- INCLUDED GRALT TER DETAIL IN THE LEGISLATION
ABOUT THE STATUTE WHICH PROVIDED FOR TERMINATION OF RIGHTS. POINTED THIS OUT TO SAY WE
FIGURE IT NEEDS TO BE MORE DETAILED TO HELP PROVIDE CONSISTENT DECISIONS.
JUSTICE PATTERSON: AN THEN THE LEGISLATURE ACTED AFTERWARD. MARY M. MC
MANUS-SMITH: YES, THAT'S RIGHT. SO WE THOUGHT IT MIGHT BE HELPFUL TO PROVIDE
SOME ADDITIONAL GUIDANCE. OBVIOUSLY, THIS COURT THINKS THAT ISN'T NECESSARY, WE WOULD
UNDERSTAND THAT, BUT IN LOOKING AT THE CASES THAT OUR OFFICE HAS BROUGHT AS WELL AS THE
MOSTLY UNPUBLISHED DECISIONS IN THIS AREA, BECAUSE THERE ARE VERY FEW PUBLISHED, WE
THOUGHT THERE WERE SOME COMMON FACTS THAT WE SAW AND THAT SEEMED TO MAKE SOME MORE COMPELLING
THAN OTHERS. THE COURT: I WASN'T FOCUSED SO MUCH ON THE IF I CAN PARTICULAR
FACTORS AND THIS IS THE QUESTION I HOPE YOU CAN HELP US WRESTLE WITH. WHAT IF
ANYTHING DO WE MAKE OF THE FACT THAT THE LEGISLATURE CHOSE FACTORS HERE, BUT NOT
THERE? MARY M. MC MANUS-SMITH: THAT'S A FAIR QUESTION. IT SEEMS
MORE ABOUT THEY HAVE THOUGHT THROUGH THE DETAILS OF WHAT THEY WANTED TO LOOK AT. BEN,
I THINK THAT'S TRUE THROUGHOUT LEGISLATION THAT WE SEE SOME THAT HAVE GREATER DETAIL AN
SOME THAT ARE MUCH BROADER. AND, OBVIOUSLY, IN COMBETH GETTING TO LEGISLATION,
SOME COMPROMISES ARE MADE IN MANY SITUATIONS AN AMBIGUITY IS INTENTIONALLY BUILT IN IN
SOME SITUATIONS IN ORDER TO GET LEGISLATION PASSED. PEOPLE MAY DISAGREE IN GET AND
GETTING SOMETHING MORE BROADLY STAID MAY HELP IT TO PASS. JUSTICE FASCIALE:
NOT ONLY DID THE LEGISLATURE USE DIFFERENT FACTORS FROM THE P V DA AND THE SASPA, BUT
THE LEGISLATURE SPECIFICALLY PARTED WAYS WITH THE GROUND THAT PROVIDES A BASIS FOR ISSUING
A TEMPORARY PROTECTIVE ORDER, SPECIFICALLY, THE LEGISLATURE SAID THAT THEY JUDGE HEARING
APPLICATION FOR A TEMPORARY PROTECTIVE ORDER MAY ENTER SUCH AN ORDER WHEN NECESSARY TO
PROTECT THE SAFETY AN WELL BEING OF THE ALLEGED VICTIM. THAT DOES NOT APPEAR IN THAT
PART OF THE STATUTE DEALING WITH FINAL PROTECTIVE ORDER, 2C:BLANK-14. AND ALSO, UNDER
THE P V DA, BEYOND THE 6 FACTORS OUR LEGISLATURE REQUIRED THERE TO BE A FINDING, ESSENTIAL
LY OF IT BEING NAT, NECESSARY TO PROVE ANY FUTURE ABUSE, UNLIKE THE FINAL PROTECTIVE ORDER
STATUTE ITSELF, 14-15 REQUIRED NONE SUCH REQUIREMENT. MARY M. MC
MANUS-SMITH: RIGHT. AND WE AGREE THAT THE LEGISLATURE WAS MOVING AWAY -- ALTHOUGH THEY
USE THE FRAMEWORK FOR THE P V DA VERY CLEARLY IN STARTING IN LEGISLATION, IN DRAWING THE
CONTOURS OF WHAT RELATIONSHIPS QUALIFY AND QUALIFY AS COMING EXACT HERE, IN USING THE
SAME JUDICIAL PROCESS, IN FACT THE SAME PERSONNEL, QUITE FRANKLY. THEY CLEARLY WERE
USING THE P V DA AS A JUMPING OFF POINT SO WHEREVER THERE ARE CONTRASTS, THAT HAS TO BE
MADE. SO, WE PUT IN OUR BRIEF SORT OF WHAT WE SAID HERE THAT THEY WENT FROM SAY, IN
THE P V DA THAT IT IS NECESSARY TO PROTECT THE VICTIM FROM FURTHER ABUSE. THEY WENT HERE
TO SOMETHING AS A TEMPORARY STAGE AND THEY DIDN'T TALK ABOUT NECESSARY, BUT IT IS A MAY
RATHER THAN DISCRETIONARY AND MAY RATHER THAN SHALL AN IT IS MORE EXPANSIVE IN TERMS OF THE
HARM, THE DANGER THAT IT DISCUSSES AN IT TALKS ABOUT SAFETY AS WELL AS WELL BEING AND
THEN, YOU'RE RIGHT BY THE TIME IT FWETS TO THE FINAL PROTECTIVE ORDER, THE NECESSARY IS
NOT PART OF THAT LANGUAGE AT ALL. AND NOW IT'S ABOUT POSSIBILITY AND YOUR ENTIRE POINT
THAT B DOES NOT MENTION DANGER OF FUTURE HARM OR ANY OF THOSE THINGS IN ASSESSMENT WITH
A FINAL PROTECTIVE ORDER SHOULD BE ENTERED BUT F LEADS A SIGNIFICANT LEVEL OF DISCRETION
IN TERMS OF WHICH PARTICULAR RELIEF IS APPROPRIATE HERE AND THAT SECOND FACTOR
CERTAINLY WOULD INFORM BLANK. JUSTICE PATTERSON: DO YOU VIEW THE LEGISLATURE
AS GIVING MORE DISCRETION TO THE JUDGES WHO LOOK AT THESE ORDERS AND DECIDE WHETHER TO
ENTER THEM NOT ONLY IN TERMS OF WHETHER TO ENTER A FINAL PROTECTIVE ORDER, BUT ALSO THE
SCOPE OF RELIEF, REMEDY, THE VARIOUS REMEDIES THAT ARE AVAILABLE TO PROTECT, AS OPPOSED
TO THE P V DA WHERE THE PACKET TORS ARE OUTLINED. DO YOU VIEW THIS LESSER
LEVEL OF LEGISLATIVE GUIDANCE TO BE A MESSAGE THAT JUDGES HAVE VERY BROAD DISCRETION IN
MAKING THIS DETERMINATION? HAD. MARY M. MC MANUS-SMITH: WELL, I BELIEVE
AS TO WHETHER A FINAL PROTECTIVE ORDER SHOULD BE ENTERED, I WOULD ARGUE CONSISTENTLY WITH
WHAT JUSTICE FASH DETAILED, IN THAT IF THERE IS A FINDING THAT THE PREDICATE ACT OCCURRED,
THAT IS SUFFICIENT TO ENTER THOSE INITIAL RESTRAINTS AGAINST CONTACT AND AGAINST
FURTHER OFFENSES, BUT THE PRONG 2, WHICH DOES NOT HAVE A LOT OF DETAIL AND USES A LOT OF,
I THINK WHAT MY KIDS CALL NEW WORDS, A LOT OF WORDS THAT MAKE IT LESS CERTAINTY ABOUT
THE DANGER OCCURRING IN THE FUTURE THAN IS DISPLAYED IN THE P D V A, THOSE ARE MORE
ABOUT WHAT SPECIFIC RELIEF SHOULD BE ENTERED, THAT IS WHERE I BELIEVE DISCRETION IS, AS
OPPOSED TO THE LEGISLATURE GIVING DISCRETION AS TO BEING WILLING TO ENTER A FINAL PROTECTIVE
ORDER. JUSTICE FASCIALE: JUST TO FOLLOW UP ON THAT, NOT ONLY IS IT DISCRETION
ARY UN F BUT IT SAYS MAY, SUBSECTION 5 OF ABERRANT OFFENSES. THE. IF
THEY FIND A POSSIBILITY OF FUTURE SAFETY AND WELL BEING. THEY CAN.
MARY M. MC MANUS-SMITH: RIGHT, AND THAT CATCHALL CAN CERTAINLY BE PARTICULARLY HELPFUL
AND EFFECTIVE IN TERMS OF AVOIDING ONLINE CONTACT, SOCIAL MEDIA YEAH CON TACK, E-MAIL,
SOME OF THAT KIND OF CONTACT IS SPECIFICALLY DESCRIBED IN THE STATUTE, BUT AS TECHNOLOGY
DEVELOPS, BEING ABLE TO HAVE MORE ROOM TO ADDRESS THE SPECIFICS OF THE SITUATIONS MAY
BE PARTICULARLY. THE COURT: SO, COUNSEL, THE SAME QUESTION THAT WE ASKSED
MS. WARAAS, DO YOU BELIEVE THAT FACTOR 1 PRONG ONE 1 ALONE IS SUFFICIENT TO GET A PROTECTIVE
ORDER. MARY M. MC MANUS-SMITH: CERTAINLY, IT IS. I THINK IN THE ALTERNATIVE
WE HAVE PROVIDED ADDITIONAL ARGUMENTS, APPLYING, EGREGIOUS CASES AN THE LIKE, BUT CERTAINLY
OUR PREFERENCE WOULD BE WE ARGUMENT L THE FIRST TIME AROUND, WHEN JUSTICE AL RAISED A
SIMILAR CONSTRUCTION OF THE STATUTE, THAT, YES, THE FINDING OF THE UNDERLYING PREDICATE
ACT, A PLAIN READING OF THE STATUTE WE BELIEVE TO BE SUFFICIENT. THE COURT:
EVEN THOUGH THE PLAIN READING OF SECTION A WHICH IS ABOUT WHAT IS NEEDED FOR A FINAL
PROTECTIVE ORDER INCLUDES THAT SECOND FACTOR? MARY M. MC MANUS-SMITH: URPS,
I BELIEVE THOSE TWO FACTORS IN A TALK ABOUT WHAT SHOULD BE CONSTRUCTED IN A HEARING SO
ADDRESSING THOSE TWO FACTUAL ISSUES IN A HEARING MAKES PERFECT SENSE IN LINE WITH IF
YOU FIND FACTOR ONE YOU'RE GOING TO ISSUE AN FPO BUT IN TERMS OF THE EVIDENCE AN PROOFS
AROUND FACTOR 2 THAT WOULD GO TO WHAT RELIEF IS NEEDED. MAYBE I HAVE MISREAD A BUT I
UNDERSTOOD IT TO BE WHAT THE HEARING WOULD ENCOMPASS RATHER THAN WHAT IS SPECIFICALLY
REQUIRED. JUSTICE PATTERSON: YOU ALREADY MENTIONED THAT FACTOR 2, WHAT WE'VE
BEEN PREVIOUSLY REFERRING TO AS PRONG 2 IS ALL ABOUT BLANK. MARY M. MC
MANUS-SMITH: YES. AND, AGAIN, I DO BELIEVE OUR BRIEF IS SUFFICIENT TO ADDRESS -- IF THE
COURT DOES NOT AGREE WITH US ON THAT POINT, WE ARE HOPEFULLY THAT THE IN HOUSE WITH THE
REST OF THE BRIEF HAS HELPED US FASHION AB OPINION. JUSTICE PATTERSON: THE
QUESTION OF WHETHER SOMEBODY HAS, LET'S SAY AN EXTREME CASE SINCE THE TECH RARE REHAS
DONE NOTHING BUT VIOLATE THAT ORDER AND TRY TO CONTACT THE PERSON, SENDING THEM
CORRESPONDENCE, E-MAILS, FACEBOOK, SOCIAL MEDIA YEAH, ETC., ON THE ONE HAND AND THE SITUATION
THIS COURT HAS WHICH IS TOTAL LACK OF CONTACT, YOU'RE SAYING THAT IS ONLY RELEVANT TO
REMEDY. MARY M. MC MANUS-SMITH: UNITED STATES,ING CLEARLY THE LEGISLATURE
INTENDED TO INCLUDE A WIDE ARRAY OF SPECIFIC INCIDENTS, THEY NOT ONLY INCLUDE LEWDNESS
ALONG WITH NONCONSENSUAL SEXUAL PENETRATION, BUT THEY INCLUDED ATTEMPT OF EACH OF THOSE
OFFENSES, AS WELL, SO THAT REALLY IS QUITE A BROAD SPECTRUM, BUT IT APPEARS FROM THE PLAIN
LANGUAGE THAT THEY DO EXPECT A PROTECTIVE ORDER TO BE ABLE FOR EITHER OF THOSE OEFRPSS.
JUSTICE WAINER APTER: I'M CONFUSED ABOUT THE READING OF SUBSECTION E THAT
YOU'RE REFERRING TO BECAUSE IT SOUNDS LIKE IT'S CHANGING, IT READS, A FINAL PROTECTIVE
ISSUE PURSUANT TO THIS SECTION SHALL BE ISSUED ONLY AFTER THE FINDINGS OF AN ADMISSION
IS MADE OF -- SO THAT SOUNDS TO ME AS THE CHIEF JUSTICE DESCRIBED BEFORE THAT A FINDING
OR ADMISSION IS A NECESSARY BUT NOT OPTION REQUISITE BUT IT SOUNDS LIKE YOUR
INTERPRETATION IS REMOVING THE WORD ONLY AFTER AND FOR EXAMPLE, REPLACING THEM WITH SOMETHING
LIKE AS LONG AS THERE IS, SO THEN IT WOULD READ A FINAL PROTECTIVE ORDER, ISSUED PURSUANT
TO THIS SECTION SHALL BE ISSUED ANY TIME THERE IS A FINDING OR ADDITION MADE THAT RESPONDENT
COMMITTED. SO, I AM NOT UNDERSTANDING THAT MOVING OF E. IT SEEMS LIKE IT IS
IGNORING THE WORD ONLY AFTER. MARY M. MC MANUS-SMITH: RIGHT. SO, I THINK
ONLY AFTER AND I HAVEN'T STUDIED THAT SPECIFIC LANGUAGE IN TERMS OF OTHER CASES THAT
INTERPRET IT, IT SEEMS TO ME LIKE IT COULD BE READ EITHER WAY. IT COULD BE READ TO MEAN
THAT IS SUFFICIENT OR IT COULD BE READ IN A WAY THAT YOU JUSTICE SUGGEST THAT IT IS
NECESSARY, BUT NOT THE ONLY FINDING THAT IS REQUIRED. JUSTICE PIERRE-LOUIS:
TO FOLLOW UP ON JUS STIS WAYNE APARTMENT, I FEEL I AM HEARING A SIMILAR SWITCHING AROUND
OF THE WORD, IT SEEMS AS THOUGH THE WAY I'VE BEEN HEARING IT IT SEEMS AS THOUGH YOUR READING
IS MOVING AFTER TO THE BEGINNING OF THE SENTENCE TO READ AFTER A FINDING OF THE COMMISSION
OF A PREDICATE ACT AN FPO SHALL ISSUE. THAT'S NOT WHAT IT SAYS, BUT THAT IS KIND OF THE
CONSTRUCTION IT SEEMS LIKE YOU'RE GIVING IT. IT IS THE SECTION THAT SAYS,
AFTER A FINDING OF THE COMMISSION OF A PREDICATE ACT AN FPO ACT, THAT SEEMS LIKE IT WOULD BE
MORE IN LINE WITH THAT'S ALL THAT IS NEEDED HERE, BUT THAT'S NOT WHAT IT SAYS. AS WE'VE
BEEN DISCUSSING IT SAYS IT SHALL BE ISSUED ONLY AFTER A FINDING WHICH SOUNDS MORE LIKE
IT'S A PREREQUISITE TO AN FPO ISSUING, BUT NOT THE FPO HAS TO ISSUE AND ONLY ISSUE AFTER
SUCH A FINDING. MARY M. MC MANUS-SMITH: I AM NOT SURE I UNDERSTAND THE
DIFFERENCE IN THOSE TWO READINGS, THEY BOTH SOUPD TO ME LIKE IT IS A PREREQUISITE.
JUSTICE FASCIALE: CAN I JUST ADD, SUGGEST THIS, REMEMBER, 2:0014-16 DEALS WITH A FINAL
PROTECTIVE ORDER HEARING WHICH OCCURRED 10 DAYS AFTER THE T P O. THE P O OH OH JUDGE
HAD THE ABILITY TO ISSUE THE TP O IF THE T P O JUDGE FOUND PLANNING INTENT, WHICH IS
DISCRETIONARY OR THE TP O FOUND THAT THE APPLICANT WAS WHICH IS NOT DISCRETIONARY, IT'S
REQUIRED. ONLY AFTER REFERS TO THE FINDING OF A PREDICATE ACT OR AN ADMISSION
TO THE COMMISSION OF A PREDICATE ACT RATHER THAN THE DISCRETIONARY ABILITY TO ENTER A
FINAL PROTECTIVE ORDER THAT EXISTS IN THE T P O STAGE THAT DOES NOT EXIST AT THE F P O
STAGE, SO I AM SUGGESTING THAT IS PERHAPS ONE WAY TO INTERPRET E ESPECIALLY IN LIGHT OF THE
OVERALL EFFECT THAT THE PURPOSE WAS SATISFIED SATISFIED, WHAT WE'VE BEEN TALKING ABOUT,
THERE IS A SPECIAL FWRUP OF VICTIMS THE LEGISLATURE WAS SPECIFICALLY TRYING TO
PROVIDE PROTECTION FOR. MARY M. MC MANUS-SMITH: YES. AND I THINK
THE LANGUAGE, THE STATUTORY LANGUAGE OF E THAT IS CLEARLY ABOUT PREDICATE, I DON'T THINK
IT ADDRESSES WHETHER THERE MIGHT BE OTHER PREDICATES NECESSARY, BUT I THINK IT IS
UNUSUAL TO HAVE SENTENCE THAT SAYS WHEN THERE IS THIS FINDING, ONLY IF THERE IS THIS FINDING
CAN YOU ISSUE AN ORDER THAT SAYS THIS AND IT SEEMS UNUSUAL TO THEN READ INTO THAT THAT
THERE ARE OTHER PREREQUISITES. THE COURT: I WANT TO POENT TO ANOTHER PART
OF SECTION A AND ASK FOR YOUR RESPONSE TO IT, THE NEXT TO LAST SENTENCE SAYS EZ, THE
ALLEGATIONS IN THE APPLICATION FOR A PROTECTIVE ORDER, THEY HAVE TO BE PROVEN BY A
PREPONDERANCE OF THE EVIDENCE, WHICH SUGGESTS THAT WE'RE TALKING ABOUT THE ORDER ITSELF.
AND THE NEXT ONE SAYS, OR YOU MUST CONSIDER BOTH ONE AND TWO. HOW DOES THAT
FIT WITH THE ARGUMENT THAT TWO ONLY GOES TO REMEDY? MARY M. MC MANUS-SMITH:
I THINK THAT PORTION OF THE STATUTE TALKS A LOT ABOUT DIFFERENT PARTNERS FOR WOMEN AND
JUSTICE OF THE HEARING. IT'S A LONG STATUTE THAT HAS A SIGNIFICANT NUMBER OF SENTENCES.
IT TALKS ABOUT THE CONNECTION TO CRIMINAL PROCEEDINGS. IT TALKS ABOUT THE
ADMISSIBILITY OF EVIDENCE. IT TALKS ABOUT THE LEL OF EVIDENCE REQUIRED AND IT TALKS ABOUT
THE TWO KEENDZ OF SPECIFIC ISSUES THAT NEED TO BE ADDRESSED. JUSTICE
PIERRE-LOUIS: AND THEN IT LEADS YOU TO THE FACTORS IN SECTION B, IT JUST YOUR REASON WHY
A COURT SHALL NOT DENY RELIEF. AGAIN, IT SEEMS THAT THE READING OF THE STATUTE IS EVERYTHING
PRIOR TO E IS NOT TALKING ABOUT ISSUANCE OF THE FINAL PROTECTIVE ORDER AND REALLY JUST
TALKING ABOUT THE HEARING AND WHAT CAN BE CONSIDERED IS NOT NECESSARILY WHAT THE TRIAL
COURT NEEDS TO FIND FOR THE ISSUANCE OF THE IDENTIFIABLE PROTECTIVE ORDER BUT THAT'S NOT
NECESSARILY THE CASE. I MEAN THAT'S WHAT IT SOUNDS LIKE SOME OF THE ARGUMENT IS. THERE
IS A LOT THAT IS DISCUSSED IN THIS PORTION, FIRST PORTION OF THE STATUTE, BUT IN THE FIRST
PORTION OF THE STATUTE AS THE CHIEF JUST INDICATED UN SECTION A THE STANDARD IS BEING
DISCUSSED. ALSO BEING DISCUSSED IS DIRECTING THE COURT AN ADVISING THE COURT THAT THE
COURT SHALL NOT DENY RELIEF FOR THESE VARIOUS REASONS SO I AM JUST TRYING TO UNDERSTAND
HOW TO -- YOUR ARGUMENT ON HOW TO READ THE STATUTE AS SEEMINGLY CUTTING, EXTRACTING
PRONG 2 AND DUMPING IT INTO THE SECOND HALF OF THE STATUTE AFTER SECTION S, HOW ARE WE
TO READ THIS BECAUSE I AM NOT CLEAR? MARY M. MC MANUS-SMITH: I WOULD TAKE
IT TO BE A IS ABOUT THE HEARING AND SORT OF A BROAD DISCUSSION THE OF COURT RULES AND
DISABILITIES, LEVELS OF EVIDENCE -- EXCUSE ME, THE BURDEN OF PROOF, JUST IN THE NUMBER
OF ASPECTS THAT WE TYPICALLY NEED TO ESTIMATE WHAT DOES THE HEARING ENTAIL AN PARTNERS FOR
WOMEN AND JUSTICE ONE AN TWO ARE THE ISSUES WE WILL BE HEARING EVIDENCE ABOUT.
IT THEN DOES GO ON TO TALK ABOUT, N D, THE REASONS YOU MAY NOT -- IT TALKS ABOUT EVIDENCE
THAT SHOULD NOT COME IN AND REASONS THAT A PROTECT I ORDER MAY NOT BE DENIED.
JUSTICE PIERRE-LOUIS: C AN THEN D GOES WHAT SHOULD HAPPEN IN THE HEARING SO IT'S NOT
-- I DON'T THINK WE CAN LOOK AT THE STATUTE AND SAYS THIS SECTION TALKS ABOUT X AN THIS
SECTION DOES NOT TALK ABOUT -- YOU KNOW, THIS SECTION TALKS ABOUT A HEARING, THIS SECTION
TALKS ABOUT FPO AN SEPARATE IT IN THE WAY IT WHICH IT SEEMS LIKE IT'S BEING SEPARATED.
JUSTICE FASCIALE: COUNSEL, SILL COURT SAID. HISTORY OF DOMESTIC VIOLENCE
AN IMMEDIATE DANGER TO PERSONAL PROPERTY. AS TO THE FINDING OF WHETHER THE
F R O IS NECESSARY TO SAVE THAT VICTIM FROM FUTURE ABUSE THE SILVER COURT SAYS YOU
CONSIDER ALL 6 FACTORS BECAUSE SOME OF THE FACTORS ARE IRRELEVANT TO THE FINDING OF A
PREDICATE ACT OF DOMESTIC VIOLENCE AS I SAID BEFORE, BY CIRCUMSTANCES, BLANK OF THE
VICTIM, DETERMINING CUSTODY AN PARENTING TIME. LET'S SAY, WHETHER THE DEFENDANT
COMMITTED A DOMESTIC ACT OF HARASS MENTD OR STALKING OR CRIMINAL MISCHIEF OR ASSAULT OR
THE LIKE AND SO ON, SO THE PREAMBLE TO THE FACTORS IN THE PROSECUTOR'S FILE DA IS AN
IDENTICAL PREEMPT TORE TO THE FACTORS IN THE ASSESSMENT. MARY M. MC
MANUS-SMITH: JUSTICE PIERRE-LOUIS, I CAN SORT OF TURN THIS FROM A DIFFERENT PERSPECTIVE
TO LOOK AT IT, WHICH IS, I THINK IT IS CLEAR THAT FACTOR 2 IS NECESSARY FOR AN ASSESSMENT
OF F, OF THE INVESTIGATION NAR RERELIEF IN F. IT DEFINITELY CARRIES THAT BURDEN. THERE IS
NO DOUBT, I THINK THAT IT CARRIES THAT BURDEN. THAT IS THE INFORMATION THAT IS NEEDED
IN ORDER TO ASSESS WHAT THE OPERATION WOULD BE FOR RELIEF IN F SO THERE IS CLEARLY A
SPECIFIC PURPOSE FOR NEEDING THAT INFORMATION. JUSTICE PATTERSON: CAN YOU
WORK THE ISSUE WITHOUT PROOF UNDER FACTOR ISSUE 2, PREVIOUSLY KNOWN BY IT'S PSEUDONYM
TRONG COURT. MARY M. MC MANUS-SMITH: WE AGREE WITH JUSTICE FASH THAT THERE IS
A, I THINK A STRONG PLAIN LANGUAGE READING ALTHOUGH I AM HEARING FROM YOU THAT IS NOT
HOW YOU SEE IT AS PLAIN LANGUAGE, THAT THAT IS A LEGITIMATE INTERPRETATION. WE HOPE,
AS I SAID, THAT THE MAJORITY OF YOU DO NOT AGREE WITH THAT ASSESSMENT. WE HOPE THAT THE
ANALYSIS THAT WE HAVE INCLUDED IN OUR BRIEF HELPS TO PROVIDE GUIDANCE NONETHELESS.
CHIEF JUSTICE RABNER: QUESTIONS ANYONE? JUSTICE FASCIALE: MY ONLY POINT
WAS IS THE REASON FOR YOUR LAST ANSWER, COUNSEL, THAT UNDER E THE SURVIVOR OF THE PREDICATE
ACT IS AUTOMATICALLY ENTITLED TO PROTECTION TO PROHIBITION OF CONTACT AND PROHIBITION
OF ANY FUTURE ACTS OF PREDICATE ACTS. THE WHOLE CONCERN AN REASON FOR FILING
THE RESTRAINING ORDER IS TO PROTECT A VICTIM OF DOMESTIC VIOLENCE IS REALIZED BY THE
LEGISLATURE'S REQUIREMENT ONCE THE TRO IS ISSUED IT MUST HAVE THE PROTECTIVE LANGUAGE IN
IT WITHOUT REGARD FOR THE POSSIBILITY OF FUTURE RISK OF SAFETY OR WELL BEING, WHICH CAN BE
TRAESED UNDER 4 OR 5 FACTORS OF SECTION F. MARY M. MC MANUS-SMITH: YOUR HONOR,
THAT SOUNDS RIGHT TO ME. I THINK IT IS ALSO CONSISTENT WITH -- WHILE I UNDERSTAND SOME
OF THE PARTIES HAVE SAID THEY DON'T SEE LEGISLATIVE INTENT IN THE HEARINGS OR THE
DOCUMENTS THAT ARE AVAILABLE REGARDING THIS SASPA SASPA, ASSEMBLY WOMAN HUT L, WHO WAS
THE AUTHOR AND SPONSOR OF THE BILL DID GO INTO DETAIL ABOUT THE LEGISLATION IS NOT ABOUT
PREVENTING SEXUAL ASSAULT SO MUCH AS ABOUT HELPING VICTIMS BECOME SURVIVORS AND HELPING
THEM HEAL. IT NOTED SPECIFICALLY THAT WHEN THE VICTIM FACES ENCOUNTERING THE ATTACKER,
ITHS NEARLY IMPOSSIBLE FOR THAT SURVIVOR TO FEEL SAFE AND MOVE FORWARD AND SHE CONCLUDED
BY SAYING SURVIVORS REALLY JUST WANT TO FEEL SAFE AFTER THEY'VE ALREADY BEEN VIOLATED.
I THINK THAT IS CONSISTENT WITH A READING THAT -- A FINDING OF THE PREDICATE ACT ALONE
IS SUFFICIENT TO ENTER A FINAL PROTECTIVE ORDER BUT THAT LOOKING AT THE DETAILS OF HOW
AND WHEN THERE MIGHT BE A POSSIBILITY AS TO FUTURE RISK TO SAFETY OR WELL BEING BEING
REALLY IS NEEDED TO BE ABLE TO SAY, OKAY, WHERE ARE YOU PROTECTED, WHAT LOCATION SHOULD
THE PERPETRATOR NOT BE GOING TO, WHAT SPECIFIC ACTS IN TERMS OF REACHING OUT TO OTHER
RELATIVES THAN COWORKERS NEED TO BE PROTECTED AGAINST AN THAT COMES FROM WHAT POSSIBILITY
IS THERE OF FUTURE RISK. THE COURT: THANK YOU, COUNSEL. LEAH A.
VASSALLO: ALL THE ATTORNEYS WHO ARE HERE TODAY, I THINK WE ALL AGREE THAT THE STATUTE
AS WRITTEN WILL BENEFIT FROM THIS COURT'S ANALYSIS OF IT. FOR SLIGHTLY DIFFERENT
REASONS BUT I THINK WE ALL AGREE THAT THERE IS A INFORMATION THAT'S APPLIED TO THIS AND
I THINK IT'S BEEN SEEN IN THE VAST DIFFERENCES OF HOUTS' BN APPLIED IN DIFFERENT TRIAL
COURTS AND APPELLATE COURTS IN THE PAST. BUT AS MUCH AS THIS IS ABOUT SASPA'S GENERAL
ROUTE FORWARD ON A BROADER SCALE, THE HE A ALSO ABOUT A YOUNG MAN WHO HAD SEX WITH A YOUNG
WOMAN WHO HE DID NOT BELIEVE WAS TOO DRUNK THAT CONSENT SHTHS HE HAD ALSO BEEN DRINKING,
A COURT LATER DETERMINED THAT SHE WAS TOO DRUNK TO CONSENT. THESE CASES HAVE TO BE
DETERMINED ON VERY FACT SPECIFIC LEVELS. THE HEARING OFFICER AND THE ONLY HEARING OVER
WHO ACTUALLY HEARD TESTIMONY FROM M.T. FOUND THAT "IT IS DOUBTFUL THAT HE THOUGHT TELEPHONE
THESE EVENTS AS ANYTHING MORE THAN AS HE TESTIFIED A QUOTE ONE-NIGHT STAND. " THIS IS
VERY DIFFERENT THAN A FORCIBLE RAPE. THAT IS THE POINT WHEN I MENTIONED EARLIER THE LAST
TIME THIS CAME BEFORE THIS COURT WHERE OF IT DIDN'T SAY THAT THEY DIDN'T MEET THE CRITERIA
OF PRONG 2, IT ACTUALLY SAID THE EVIDENCE ON THE RECORD AT THAT POINT APPEARED TO ACTUALLY
COUNTER PLAINTIFF'S ESTABLISHING OF PRONG 2. SO THAT IS NOT A SITUATION
WHERE I THINK THERE SHOULD BE A DE FACTO ASSUMPTION FOR PRONG 2 BASED ON VIOLENCE
BECAUSE, I MEAN I KNOW PEOPLE DEFINE VIOLENCE MANY DIFFERENT WAYS, BUT NO ONE IS DISPUTING,
NO ONE IS ARGUING THAT HE EVER THOUGHT SHE WAS TOO DRUNK TO CONSENT. SO
GO BACK TO THE LEGISLATIVE OF LANGUAGE, DOES APPEAR TO BE SLOPPY, YES, BUT IT CANNOT BE
THAT THE RESTRAINING ORDERS UNDER SASPA ISSUE AUTOMATICALLY BASED ON A PREDICATE ACT,
BUT SOMEHOW PDVA VICTIMS ARE LESS DESERVING OR LESS MEANING OF A RESTRAINING OR AND HAVE
TO MEET MUCH STRICTER QUALIFICATION. THERE HAVE TO BE FACTORS EVALUATED ON BOTH AND MOST
OF THE FACTOR PROPOSED BY THE AMICUS IN HER BRIEF I THINK ARE APPROPRIATE, BUT IN THIS
CASE, NONE OF THOSE FACTORS WOULD ACTUALLY SUPPORT A RESTRAINING ORDER. SO I ENCOURAGE
TO YOU REMEMBER THAT IT'S ACTUALLY AN INDIVIDUAL'S FUTURE AND HIS REPUTATIONS AT
LEAST TO HIMSELF P ANYONE ELSE WHO IS AWARE OF IT, THAT IS AT STAEBLG AS WELL AS THE GENERAL
PROJECTION OF THIS IN THE FUTURE. AND I KNOW. AND IEN THERE WAS A QUESTION
RELATED TO, I THINK IT WAS THE FINAL RESTRAINING ORDER SECTION FROM I BELIEVE SECTION
E THAT THERE WAS A QUESTION THAT I HAD SAID I WOULD GET BACK TO YOU DURING THE REBUTTAL.
CAN YOU JUST REMIND ME SPECIFICALLY OF WHAT YOU WERE ASKING? JUSTICE FASCIALE:
CHIEF JUSTICE RABNER: OR WE CAN JUST MOVE ON ALTOGETHER. LEAH A.
VASSALLO: IT'S BEEN DISCUSSED A LOT AND I PROBABLY HAVE ANSWERED IT IN SOME FORM OR
ANOTHER, BUT MAYBE FOR NIECE REASONS ASK THAT THE APPELLATE COURTS FINDSING UPHOLD THE
TRIAL COURT'S ISSUANCE OF ISSUING A FOONL RESTRAINING ORDER BE REVERSED.
CHIEF JUSTICE RABNER: THANK YOU,