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Statutory Defense for Domestic Violence

The General Principles of Liability available to defendants in the Code of Criminal Justice N.J.S.A. 2C:2-1 et seq. apply to the defense of domestic violence actions. It is the Plaintiff who must establish by a preponderance of the evidence that each and every element of the Domestic Violence Complaint and underlying reference to the enumerated criminal statutes are met. N.J.S.A. 2C:2-2 (a);

"... a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently as the law may require, with respect to each material element of the offense."

The "Code of Criminal Justice" is far too often ignored in the defense of domestic violence actions. It is clear from the legislative scheme that the Plaintiff must prove culpability. A person is not guilty if the purposeful, knowing, reckless or negligent conduct is not proven by a preponderance of the evidence in domestic violence actions and beyond a reasonable doubt in any related criminal proceeding. The requirements of culpability are set forth below.

2C:2-2. General requirements of culpability
  • Minimum requirements of culpability - Except as provided in subsection c. (3) of this section, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

  • Kinds of culpability defined

    • Purposely - A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.
    • Knowingly - A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of the nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.
    • Recklessly - A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.
    • Negligently - A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degrees that the actor's failure to perceive it, considering the nature and propose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. "Negligently" or "negligence" when used in this code, shall refer to the standard set forth in this section and not to the standards applied in civil cases.

  • Construction of statutes with respect to culpability requirements

    • Prescribed culpability requirement applies to all material elements - When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all material elements of the offense, unless a contrary purpose plainly appears.
    • Substitutes for kinds of culpability - When the law provides that a particular kind of culpability suffices to establish an element of an offense such element of an offense such element is also established if a person acts with a higher kind of culpability.
    • Construction of statutes not stating culpability requirement - Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless indicating a legislative intent to impose strict liability, should be construed as defining a crime with the culpability defined in paragraph b.(2) of this section. This provision applies to offenses defined both within and outside of this code.

Specific Statutory Defenses
  • Mutual Consent - The offense of simple assault is defined in N.J.S.A. 2C:12-1(a) and categorizes simple assault as a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent in which case it is a petty disorderly persons offense. It can be argued that the purpose of the alleged domestic violence was to engage in a consented fight or scuffle and does not meet the criminal culpability required. It may also be an argument that petty disorderly offenses are not within the purview of the Prevention of Domestic Violence Act.

  • Joint Participation - When the parties jointly participate in a concerted activity the code provides a more specific defense.
  • 2C:2-10. Consent

    • In general - The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm of evil sought to be prevented by the law defining the offense.
    • Consent to bodily harm - When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
      • The bodily harm consented to or threatened by the conduct consent to is not serious; or
      • The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
      • The consent establishes a justification for the conduct under chapter 3 of the code.

  • Self Defense - Under the section of Criminal Justice entitled "Principles of Justification" the legislature has provided the self-defense criteria which should be argued and referenced in defense of domestic violence actions.
  • 2C:3-4. Use of force in self-protection.

    • Use of force justifiable for protection of the person - Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

  • Intoxication - Intoxication may be inserted as a defense if it negates an element of the defense. Intoxication is a affirmative defense if it is pathological and can be proven by clear and convincing evidence.
  • 2C:2-8. Intoxication.

    • Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it negatives an element of the offense.
    • When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
    • Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4.
    • Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.
    • Definitions - In this section unless a different meaning plainly is required:
      • "Intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
      • "Self-induced intoxication" means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advise or under such circumstances as would afford a defense to a charge of crime;
      • "Pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.

  • Duress - When a defendant is coerced into the conduct by use of, or threat of unlawful force against his person or the person of another, the defense of duress may be raised if a person of reasonable firmness in the situation would have been unable to resist.
  • 2C:2-9. Duress.

    • Subject to subsection b. of this section, it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in this situation would have been unable to resist.
    • The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability of the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.
    • It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman, acting in the presence of her husband, is coerced is abolished.

  • Ignorance or Mistake - Where ignorance or mistake of a matter of fact of law is reasonably concluded by the defendant it may be a defense. This defense must be proven by clear and convincing evidence.
  • 2C:2-4. Ignorance of mistake.

    • Ignorance or mistake as to a matter of fact or law is a defense reasonably arrived at the conclusion underlying the mistake and:
      • It negatives the culpable mental state required to establish the offense; or
      • The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
    • Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
    • A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
      • The statute defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to conduct alleged; or
      • The actor acts in reasonable reliance upon an official statement of the law afterward determined to be invalid or erroneous, contained in (a) a statute, (b) judicial decision, opinion, judgment, or rule, (c) an administrative order or grant of permission, or (d) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense; or
      • The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.

    The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence.

  • Deminimis Infractions - Considering the far reaching remedies of a Domestic Violence Act it can and should be argued that certain behavior constitutes a deminimis infraction. Deminimis infractions are defined as conduct within the customary license or tolerance or is behavior "too trivial" to warrant the condemnation of conviction or cannot reasonably be regarded as envisioned by the legislature.
  • 2C:2-11. Deminimis infractions.

    The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:

    • Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
    • Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
    • Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.

  • Intent/Casual Relations - The principles of liability contained in the Criminal Code define intent where the result is within the design of contemplation of the actor or, if not within the actual design or contemplation involves the same kind of injury or harm as that designed or contemplated, and is not too remote, accidental in occurrence, or dependant upon another's act.
  • 2C:2-3. Casual relationship between conduct and result; divergence between result designed, contemplated or risked and actual result:

    • Conduct is the cause of a result when:
      • It is an antecedent but for which the result in question would not have occurred; and
      • The relationship between the conduct and result satisfies any additional casual requirements imposed by the code or by the law defining the offense.
    • When the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation, as the case may be, of the actor, or if not, the actual result must involve the same kind of injury or harm as the designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

  • Justification - Where there is not a legislative purpose to exclude justification and where conduct is justifiable by reason of necessity the Criminal Code permits justification as a defense.
  • 2C:3-1. Justification an affirmative defense; civil remedies unaffected.

    • In any prosecution based on conduct which is justifiable under this chapter, justification is an affirmative defense.
    • The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action.

    2C:3-2. Necessity and other justifications in general.

    • Necessity - Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
    • Other justifications in general - Conduct which would otherwise be an offense is justifiable by reason of any defense or justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

  • All Other Defenses - Where there is no legislative purpose to exclude a defense or a defense does not plainly appear, a defendant may raise any defense provided by law.
  • 2C:2-5. Defenses generally.

    Conduct which would otherwise be an offense is excused or alleviated by reason of any defense now provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with a specific situation involved and a legislative purpose to exclude the defense claimed does not otherwise plainly appear.


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