FRO denied where no risk to society T.D. v. A.L. A-3569-21

  FRO denied where no risk to society T.D. v. A.L. A-3569-21

Plaintiff appealed the denial of her request for a FRO and the dismissal of the TRO entered against defendant. At the FRO hearing, plaintiff testified that the parties attended high school together but lost contact after graduation, reconnecting nearly a decade later via social media. Plaintiff testified that she sought out defendant's hair styling services due to stay-at-home orders issued during the COVID-19 pandemic. Defendant cut plaintiff's hair in her apartment and helped her move into and paint a new apartment. The parties did not have a romantic relationship. Plaintiff contacted defendant via social media to request a facial treatment at her home. Defendant changed the location to his barbershop because he had another client that day. Plaintiff testified that defendant reached under her clothing to touch her breasts and vagina during the facial treatment; plaintiff alleged that defendant held her down by her neck when she tried to get up. Plaintiff testified that she reported the incident to law enforcement, who informed her that she did not need a protective order. Plaintiff acknowledged that defendant received a message from plaintiff's Facebook account, but claimed that it was sent by her girlfriend or cousin. Plaintiff admitted that she had an intimate relationship with her girlfriend, who had access to plaintiff's social media accounts. Plaintiff acknowledged that defendant made no effort to contact her after the alleged incident. The trial court denied a FRO, finding that a reasonable person in defendant's shoes would have believed that plaintiff was consenting to the touching and noted that defendant stopped when questioned by plaintiff. The trial court discredited plaintiff's assertion that either her girlfriend or cousin had used her Facebook account to contact defendant after the alleged incident. The trial court further ruled that plaintiff had failed to prove a future risk to her safety necessitating a FRO. On appeal, the court affirmed, finding plaintiff failed to meet her burden under the second Sexual Assault Survivor Protection Act prong. The court ruled that the trial court erred in considering whether plaintiff consented to defendant's touching from defendant's perspective rather than plaintiff's, thereby ignoring plaintiff's unrefuted testimony that she did not consent to the touching. However, the court found that plaintiff failed to demonstrate "the possibility of future risk" to her safety or well-being. source NJLJ