Just about everyone can recite the old children’s rhyme. However, many question the validity of sticks and stones breaking bones and words never hurting. When it comes down to it, words are pretty powerful. And, a great many restraining orders are granted based on the potency of words alone.
Although New Jersey law says otherwise, some people still view domestic violence from a “sticks and stones” vantage point. After all, the word violence surely seems to imply bodily harm. Meanwhile, more than one predicate act of domestic violence is based on something that doesn’t involve physical contact.
Take, for example, terroristic threats as defined in NJSA 2C:12-3. If an intimate partner threatens to kill you and puts you in imminent fear of death, you may need a restraining order. The court will need to decide if your concerns are justified and if there’s a chance the threat could be carried out.
There are other acts when words may be the impetus for seeking a restraining order. Cyber-harassment and harassment can both involve non-physical acts of domestic violence. However, in the end, there is an important issue. Are some words just a matter of free speech? When is a restraining order actually in order?
Free Speech or Harassment?
At the end of last year, the New Jersey Supreme Court decided a case on harassment. Although State v. Burkert is a criminal matter, it already has had been cited in family court.
According to the facts of the case, William Burkert and Gerald Halton were corrections officers. They represented different unions, which seemed to put a strain on their relationship. Things came to a head when Burkert was annoyed when he saw Halton’s wife make what he viewed as derogatory comments about his family on social media.
Burkert decided to retaliate and downloaded a wedding photograph of Halton and his wife. He then proceeded to write degrading and vile dialogue on the picture. The photographs were made into flyers and found strewn across the parking lot and the locker room used by the county corrections officers.
Halton brought harassment complaints against Burkert in municipal court. At the municipal court level, Burkert was found guilty of two counts of harassment. However, when the case reached the Appellate Division, the convictions were overturned.
The Supreme Court cited the language of NJSA 2C:33-4 (c) in making its ruling in favor of the defendant. There were not repeated acts that were intended to “alarm” and “seriously annoy.” The free speech provisions of the United States Constitution doesn’t just protect people who are cordial and polite. So, how does this apply to family law matters?
Restraining Order Reversed
A month after the Burkert decision, the New Jersey State Appellate Division wrote an unpublished opinion citing it. Notably, E.T v. J.B. protects the identity of the litigants by using their initials. Also, the court’s decision only applies to these parties and is not precedential law.
E.T. and J.B. met online, while E.T. was a resident of the Philippines. After his second visit with E.T. in the Philippines, J.B. invited E.T. to live with him in the United States. Within in a few months, the two began to argue. In fact, on more than one occasion, J.B. instructed E.T. to pack her bags so he could take her to the airport to return to the Philippines. They temporarily resolved their issues after the encounters and even had a child together.
A month after the birth of their baby, E.T. decided that she wanted to leave J.B. She called the police, and they allowed her to leave with the child. E.T. went to live with a neighbor.
E.T. returned to the premises to pick up some personal items. When J.B. would not let her in, she used her keys. J.B. videoed their interaction during the time period E.T. was at the home. A few days later, J.B. visited the neighbor’s house where E.T. was living. He asked to see his baby. The neighbor spoke with E.T. and came back to advise J.B. that E.T. refused his request.
J.B. went back to his house. However, the next day, E.T. applied and received a temporary restraining order. When asked why she wanted the restraining order, E.T. said that she was fearful of what J.B. could do to her because she didn’t have funds or family in the United States. Meanwhile, J.B. testified that everything she had was purchased with his money.
When the final restraining order was granted, the judge referred back to the airport incidents. The judge stated that these documented J.B.’s attempts to harass E.T. The judge also found that the “restraining order was necessary because defendant showed a "lack of empathy and kind of domineering style."
Upon review by the Appellate Division, it was determined that the harassment statute “was never intended to protect against the common stresses, shocks, and insults of life that come from exposure to crude remarks and offensive expressions, teasing and rumor mongering, and general inappropriate behavior. The aim of subsection (c) is not to enforce a code of civil behavior or proper manners."
Are you in need of a restraining order or accused of domestic violence charges? The Law Offices of Sam Stoia can provide you with legal advice you need. Contact us to set up a complimentary appointment.