1. What exactly constitutes harassment?
New Jersey’s Harassment law is set forth at N.J.S.A. 2C:33-4. A person is guilty of a petty disorderly person’s offense of harassment if he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively court language, or any other manner likely to cause annoyance or harm;
b. Subjects another to striking, kicking, shoving, or other offense touching, or threatens to do so; or
c. Engages in any other curse of alarming conduct or of repeatedly committed acts with purpose to alarm or serious annoy such other person.
A communication under subsection a. may be deemed to have been made either at the place where I originated or at the place where it was received.
Harassment becomes an indictable offense of the fourth degree if the harassment occurs while the defendant is on parole or probation for an indictable criminal offense.
The majority of DV cases are filed on the grounds of harassment. When a marriage is on the rocks then the quickest way to have a spouse removed from the marital home is by filing for a restraining order. Quite often a devious spouse will conjure up harassment charges and then go file for a restraining order case. The bottom line is that the domestic violence laws are very often abused. Many devious spouses try to use the domestic violence laws as a weapon or as leverage in dealing with their spouse. When a person is arrested or charged with harassment in a DV case then the critical issue is whether the alleged conduct constitutes routine domestic quarreling, or whether it constitutes a pattern of repetitive, annoying and/or alarming conduct. The answer to this question always is most often impossible to determine without having a full DV trial.
In summary, DV trials based on the charges of harassment are always fact sensitive. If you are defending against a case DV charge based on harassment, then the theme of your defense should be that there was no history of domestic violence. Moreover, you should inform the court that any alleged conduct did not alarm the plaintiff. The defendant should testify that he did not intend to annoy or alarm the plaintiff. Finally, you should also argue that the alleged conduct if found to constitute domestic violence would trivialize the DV statute and be disrespectful to all of the true victims of domestic violence.
2. What is the most important case in New Jersey caselaw on what constitutes harassment?
The most important case is State v. Hoffman, 149 N.J. 564 (1997). This case was decided by the New Jersey Supreme Court. Meanwhile, the vast amount of other notable DV cases was decided by the Appellate Division. Here, the issue(s) was whether or not the husband’s act of mailing a torn up child support order on two separate times constituted harassment. Another issue was whether the mailing out of the ripped up legal papers constituted a violation of a prior restraining order. Here, the parties really had a rocky marriage. There were many restraining orders in this case, dismissals, and violations of the orders. Ultimately, the defendant pled guilty to three years of probation and to 364 days in jail.
While the defendant/ex-husband was in the county jail, he mailed by regular and certified mail to his ex-wife a copy of a notice of motion to reduce child support. He also sent her a copy of a torn up child support order. Thereafter, the ex-wife filed two complaints against her former husband for these two mailings. One complaint was based on harassing communications, and the other charge was for a contempt of a DV order.
The DV charges alleged that the mailings by the ex-husband of a torn-up support order to his former spouse violated the harassment statute, N.J.S.A. 2C:33-4(a). The New Jersey Supreme Court did not agree. Instead, the Hoffman court held that the manner of communications did not establish the requisite harassing intent to annoy or alarm.
Thus, the Hoffman court held that the ex-husband did not violate the harassment statute by simply mailing a ripped-up support order to his former wife. The court further held that the mailings, while harassing in intent, did not invade the ex-spouse’s privacy, because it occurred during convenient hours and was in the ex-husband’s name. However, the New Jersey Supreme Court did hold that the mailings did violate the terms of the prior restraining order that prohibited no contact. In summary, in the Hoffman case, the defendant prevailed on the harassment charge. However, he was convicted for violating a prior restraining order because he sent the motion and the torn up order to his wife. This type of contact was held to violate the no contact provisions of the restraining order.
3. What are some other seminal cases that address what constitutes harassment in a DV case?
A. Peranio v. Peranio, 280 N.J. Super 47 (App. Div. 1995).
Here, Mr. Peranio stated to his wife “I’ll bury you.” This statement was found by a trial court to constitute harassment, and it was also held to be domestic violence. The Appellate Division found that the defendant did not commit any domestic violence under those circumstances. The Appellate Division further held that Domestic Violence is a term of art which defines a pattern of abusive and controlling behavior. The court found that the husband did not have any intent to harass his wife even if his comments were alarming.
Another important point of the Peranio case is that it emphasized that in typical DV cases there must be regular and serious abuse between spouses, and a pattern of abuse and controlling behavior. Here, the court held that the husband did not have any intent to harass his wife. The court noted that he did not engage in a course of repeated acts of alarming conduct. See also, Grant v. Wright, 222 N.J. Super 196. (App. Div. 1988). Moreover, there was no history of any prior domestic violence.
In summary, the Peranio court held that even though the defendant acted like a dope, there was no basis to enter a final restraining order based on the grounds of harassment. The court noted that if the defendant was found guilty of domestic violence then it would “diminish the suffering of true victims of domestic violence and misuse the legislative vehicle which was developed to protect them. It also had to the secondary negative effect the potential for unfair advantage to a matrimonial litigant.” In closing, the Peranio court held that intense bickering that amounts to mere domestic contretemps does not constitute harassment, and it is not domestic violence.
B. Corrente v. Corrente, 281 N.J. Super 243 (App. Div. 1995).
Another key case is the Corrente case. Here, the Corrente’s were separated and the defendant repeatedly called the plaintiff at her workplace. He then threatened drastic measures if his wife would not contribute her paycheck to pay the family’s monthly bills. Moreover, the husband turned off the wife’s phone. The trial court found domestic violence.
The Appellate Division reversed and held that even though the husband had threatened the wife and carried out his threat with turning off the telephone, this act did not domestic violence. Moreover, the court held that the husband’s calls to his wife’s workplace also did not constitute domestic violence. The court noted that the husband’s actions could not be classified as alarming or seriously annoying.
The Appellate Division further held that there was no history of domestic violence between the parties. Moreover, the court ruled that the defendant did not have any intent to harass or to alarm his wife. The court held that the facts of this case simply were a conflict over finances and the possession of the marital household. The court emphasized that the domestic violence laws can’t be trivialized and misused.
4. What are some other relevant caselaw on what constitutes harassment in a DV case?
A. D.C. v. T.H., 269 N.J. Super 458 (App. Div. 1994).
Here, the defendant went to his son’s daycare and he threatened to kick his wife’s ass if her boyfriend physically disciplines the child again. The trial court held that this behavior constituted domestic violence and a restraining order was issued. The case was then appealed and it was reversed. The court held that the evidence did not establish that the defendant was engaged in a course or alarming conduct, nor did he commit acts with the intent to alarm or seriously annoy his wife. The defendant also videotaped his wife. The wife alleged that her husband was stalking her. The wife was never aware that she was videotaped. The husband alleged that he just wanted to make sure that his child was safe at all times. On appeal, the court held that the videotaping of the plaintiff did not constitute stalking either because she was not aware that she was being videotaped.
B. E.K. v. G.K., 241 N.J. Super 567 (App. Div. 1990).
The trial court entered a restraining order that compelled the wife to stop harassing the husband by disciplining their child in a manner which the husband disapproved. The Appellate Division reversed stating that even if the mother intended to harm the adopted daughter by shaking her in such a manner that the daughter’s head struck a kitchen cabinet, the record did not support the conclusion that the mother did so in order to harass the husband under the harassment statute.
C. Grant v. Wright, 222 N.J. Super 191 (App. Div. 1988), cert. den., 111 N.J. 562 (1988).
Here, the defendant put the plaintiff’s belongings in storage while she was gone for the weekend. The defendant knew that these actions would anger and upset her. The defendant was also slamming the door, having violent outbursts, and throwing objects around the home. The court ruled that these actions did not constitute harassment. The court noted that this type of behavior they did not rise to the level of alarming conduct to constitute harassment.
D. Murray v. Murray, 267 N.J. Super 406 (App. Div. 1993).
Here, the defendant husband made threats to take over the assets of the house in the divorce settlement. The husband also cheated on his wife, he refused to talk to her, he told his wife that he did not love rather or find her sexually appealing. The trial court found that these actions did constitute harassment. The case was then appealed. On appeal, the case was reversed. The Appellate Division found that the defendant was merely responding to his wife’s inquires. Moreover, the court noted that these statements were not made for the purpose to repeatedly alarm or annoy his wife, even though they have done so.
E. State v. L.C., 283 N.J. Super. 441 (App. Div. 1995).
Here, the defendant parked in his driveway while he was picking up the kids. Thereafter, he blocked his wife in the garage for five and he called her obscene names by making remarks of an ethnic and sexual nature about his wife’s new boyfriend. Moreover, he also kicked over a garbage can. The trial court found these actions to be domestic violence. The case was then appealed and reversed. The Appellate Division held that the evidence did not support a finding of domestic violence or harassment. The court further noted that the defendant’s conduct did not intend to “alarm” the plaintiff, instead, both parties mutually annoyed each other.
F. C.M.F. v. R.G.F., 418 N.J. Super. 396 (App. Div. 2011).
This was a DV case that was appealed. The husband used “offensively coarse” language (pig, whore, slut, f__ing against his wife. These comments were made in a public setting in front of their children, and parents of their children’s friends. The critical issue was whether these comments qualified as harassment under New Jersey Law?
The court held that this language did constitute harassment. The court ruled that this conduct falls squarely within the statutory limits of harassment because (1) the defendant communicated with the plaintiff; (2) the defendant’s purpose of communicating was to harass the plaintiff; and (3) the communication was made in a manner that was likely to cause annoyance or alarm to its intended recipient. The court ruled that the nature of the comments, the manner of delivery, and and the audience of the verbal attack “strongly suggest a purpose to harass.”
G. L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011). Here, the issue was whether under the Domestic Violence Statute is was harassment if a defendant sent 18 text message about his daughter’s SAT scores and the plaintiff only responded once. The court held that these text messages did not constitute harassment. The court held that the purpose of the defendant’s messages was not to harass the plaintiff. Although the defendant’s behavior may have been dysfunctional, if the plaintiff would have provided the information to the defendant, the messages would have stopped.
The court also noted that this was an isolated incident that reflected an expression of anger during a stressful period in the defendant’s life. The court opined that the line between harassment and marital contretemps is a challenging task to decipher. In summary, the court held that there was no need for any type of restraining order in this case.
H. E.M.B. v. R.F.B., 419 N.J. Super. 177 (App. Div. 2011). Here, the issue was whether it was harassment under the Prevention of Domestic Violence Act for the defendant to call his mother a “senile old bitch?” The court held that this comment did not constitute harassment. The court noted that a mere expression of an opinion that utilizes offensive language is not sufficient to prove harassment. The court held that in order to qualify as harassment, the conduct or language must be committed with the intent to alarm or to seriously annoy such other person. The court held that the mere acts along do not warrant a violation of the harassment statute.