Violation of a Restraining Order
Violations of Final Restraining Order in Mercer County
A restraining order will be placed against you if the court finds that you were the “aggressor” in the domestic violence which was alleged. A contempt charge is a separate criminal charge that results when the aggressor violates either a Final Restraining Order (FRO) or Temporary Restraining Order (TRO) and may result in incarceration along with a criminal record. The police must arrest the defendan when the officer finds there is probable cause that an aggressor has committed contempt of the domestic violence restraining order. N.J.S.A. 2C:25-31. The aggressor does not have to be at the scene for a later arrest. Even if the cops find that there is no probable cause, the victim may still file a criminal contempt charge at the Family Part, Chancery Division pursuant to N.J.S.A. 2C:25-32 and the police may then arrest the aggressor.
Criminal Contempt of Restraining Order
A violation of a restraining order can be prosecuted in either the Family Part or Criminal Part of the Superior Court depending on the circumstances. The Family Part, Chancery Division has exclusive jurisdiction if the aggressor is charged with a violation that involves a petty disorderly persons offense (harassment), including mere contact with the victim, or if the violation involved visitation, The Criminal Part, Law Division hears contempt charges if the aggressor has committed a violation that constitutes an indictable fourth degree offense or disorderly persons offense under N.J.S.A. 2C:25-28a. A prosecutor is involved in all criminal contempt violation charges regardless of whether the case will be heard in family or criminal court. Under 2C:29-9(b), Criminal Contempt, you are guilty of a fourth degree offense if you knowingly disobey a court order and the conduct which constitutes the violation of the restraining order would also constitute a separate indictable crime or a disorderly persons offense. On the other hand some acts of contempt are disorderly persons offenses if the act would normally not constitute a crime but for the existence of the restraining order. These include contacting the victim, possessing any weapon, following the victim, or being at a place restricted by the restraining order but with no intent to commit a crime. Below is a schematic of the two different types of contempt of a restraining order:
•· Disorderly Persons Offense + Contempt Charge = 4th Degree Contempt (heard by Criminal Superior Court Judge)
•· Petty Disorderly Persons Offense + Contempt Charge = Disorderly Persons Offense Contempt (heard by Family Superior Court Judge)
Punishments for Violating a Restraining Order
For a first offense of contempt a court may impose jail time if the aggravating circumstances outweigh the mitigating circumstances. N.J.S.A. 2C:44-1(b). For a second or any subsequent offense of criminal contempt the Domestic Violence Act provides for 30 days of mandatory jail time for even a non-indictable contempt charge. However, the enhanced jail penalty does not apply to a defendant who is simultaneously convicted for multiple contempt charges even if the conduct occurred on separate dates. State v. Bowser, 272 N.J. Super. 582 (Ch. Div. 1993).
A judge may consider aggravating and mitigating circumstances when sentencing an aggressor to jail for criminal contempt under N.J.S.A. 2C:44-1(a) and (b)
Aggravating Circumstances include:
- Victim particularly vulnerable;
- Risk that the aggressor will commit another offense;
- Aggressor’s prior record;
- Policy seeking to deter aggressor and others;
- Policy avoiding sense that “fines are only cost for doing business”;
- Victim over 60 years old is especially vulnerable;
Mitigating Circumstances include:
- Aggressor’s conduct neither caused nor threatened serious harm;
- Aggressor did not contemplate that the conduct would cause or threaten serious harm;
- Substantial grounds exist to excuse or justify the aggressor’s conduct, though failing to establish a defense;
- Victim induced a facilitated the commission of the act;
- Aggressor has no history or prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
- Aggressor’s conduct was the result of circumstances unlikely to reoccur.
Defenses for Contempt of Restraining Order
A contempt charge is a violation of a court order so the State of New Jersey becomes the party in interest in prosecuting the contempt, not the complainant or victim. State v. Brito, 345 N.J. Super. 228, 230 (App. Div. 2001). Therefore, a defendant should be aware that reconciliation with the alleged victim is not a valid defense to a contempt charge. State v. Washington, 319 N.J. Super. 681 (Ch. Div. 1998). There are certain defenses for contempt of a restraining order, for instance the court must show that the defendant had actual notice of the restraining order in order for the defendant to be convicted of contempt. It is also important to note that a victim’s failure to appear may not result in an automatic dismissal, especially on the first listing. This is because under the Domestic Violence Act the court has a duty to protect victims of domestic violence and the lack of appearance may be based on coercion or duress by the aggressor.