S.D. v. M.J.R

"beat" him. According to the mother, defendant then took the car, while she and plaintiff walked to the Imam's house. During their walk, plaintiff allegedly stated that she was going to "destroy" defendant for divorcing her, and that she did not care if she were destroyed in the process, as well. When they arrived at the Imam's house, the mother heard plaintiff say that she loved defendant, that she did not wish a divorce, and that she would do anything for him. She did not hear plaintiff complain about nonconsensual sex. The mother stated that, after the divorce, on January 24, she received a phone call from plaintiff, during which plaintiff accused the family of having no decency and stated that the mother was an old, ugly woman.

The nurse who sheltered plaintiff also testified for the defense. She stated that plaintiffs statement that she wanted her baby to be with his father prompted the nurse's attempt to arrange a reconciliation between plaintiff and defendant. However, she admitted that plaintiff had complained of domestic abuse during the course of the reconciliation meeting, and that defendant had been instructed to cease abusing her. The nurse testified further that, during plaintiffs three-day stay with the Imam, plaintiff called her in seeming distress. When the nurse visited plaintiff the next day, plaintiff complained about the divorce but not any mistreatment. Although plaintiff was supposed to make arrangements to go to Morocco, she determined to stay in the United States, saying "after what [defendant] did, I cannot leave his life like that."

Testimony was additionally offered for the defense by the Imam regarding matters in issue. The Imam testified that defendant sought to divorce plaintiff because she threatened to go to the police, but that she never mentioned to him being forced to engage in nonconsensual sex. According to the Imam, although defendant sought a divorce, plaintiff opposed it. The Imam testified additionally that arrangements were made for plaintiffs return to Morocco, but when he and his wife sought to take her to the airport, she refused.

At the conclusion of this testimony, in response to the judge's questions, the Imam testified regarding Islamic law as it relates to sexual behavior. The Imam confirmed that a wife must comply with her husband's sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife "like any animal." The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said "no." However, he acknowledged that New Jersey law considered coerced sex between married people to be rape.

On June 30, 2009, the judge rendered an oral opinion in the matter. He commenced his opinion by stating that plaintiff alleged that defendant engaged in conduct that constituted assault, criminal restraint, sexual assault, criminal sexual contact, and harassment under the Prevention of Domestic Violence Act. The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:38-1b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiffs testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiffs "clear proof of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiffs testimony of sexual assaults thereafter, since there was no corroboration in plaintiffs complaints to the police. The judge also found no criminal restraint to have occurred.

The statute provides in relevant part that

a person commits a petty disorderly persons offense if, with purpose to harass another, he:

. . . .

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

In response to an objection by plaintiff's counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff's claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.

While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant's advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiffs contrary wishes.

Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiffs domestic violence action. In doing so, the judge characterized November as a "bad patch" in the parties' marriage and plaintiffs injuries as "not severe." The judge then stated:

[T]his is a case where there is no history of domestic violence. In fact, they have been — they were together for only three months. Then the bad patch was three weeks, and then another week.

And then — and then, the record indicates that this defendant has filed for a divorce, he got divorced in — with the Imam, but the record indicates that he has filed for divorce in Morocco. This plaintiff has answered that complaint in Morocco. Divorce proceedings will occur in Morocco.

The defendant has indicated that he is finished with the marriage. The parties are living separate and apart now. This defendant's visa expires in July, I believe.

The judge therefore found that the parties had no reason to be together again, but immediately thereafter, he noted that their baby was expected in August and "[t]hat will require that the parties be in contact presumably." The judge then concluded:

In this particular case, this court does not believe that a final restraining order is necessary under the circumstances. There's no need for the parties to be associated with one another. They are divorced now. They don't live together. They don't have to be together

[T]his was a situation of a short-term marriage, a very brief period of physical assault by the defendant against the plaintiff and it's now E. situation where the parties don't live together, won't be living together and won't have a need to be in contact with one another.

Under those circumstances, the court finds that a final restraining order is not necessary to prevent another act of domestic violence. The Court will not enter a final restraining order.

Nonetheless, the judge cautioned defendant not to have any contact with plaintiff and to instruct his family members and friends to have no further contact with plaintiffs family. Additionally, the judge acknowledged that the two would have to be involved in litigation over the baby and child support.

As a final matter, the judge recognized the pendency of a criminal action against defendant, and indicated its existence constituted an additional basis for the judge's ruling denying a final restraining order, since he assumed that a no-contact order had been entered as a condition of bail.

Plaintiff has appealed.

II.

The Supreme Court enunciated the standard of review for an appeal from a trial court's decision in a domestic violence case in Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390 (1998). It stated:

The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Because a trial court "`hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Therefore an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." . . .

Furthermore, matrimonial courts possess special expertise in the field of domestic relations. . . . Moreover, the [Prevention of Domestic Violence Act] specifically

directs plaintiffs to file their domestic violence complaints with the Family Part of the Superior Court

Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding. [ Id. at 411-13, 713 A.2d 390 (citations omitted).]

We, of course, review the judge's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).

III.

We first address the judge's dismissal of plaintiffs claims of domestic violence premised on sexual assault and criminal sexual contact. The New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, was enacted in its present form in 1991. In N.J.S.A. 20:25-18, the Legislature set forth its findings and declaration, stating in relevant part:

The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.

The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context.

[I]t is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages . . . the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act

will be enforced without regard to the fact that the violence grows out of a domestic situation.

The PDVA defines "domestic violence" in N.J.S.A 20.25-19 to mean the infliction of one or more of an enumerated list of crimes upon a protected person. Among the crimes listed are assault, N.J.S.A. 2C:12-1; sexual assault, N.J.S.A 2C:14-2;, criminal sexual contact, N.J.S.A. 2C:14-3; and harassment, N.J.S.A. 2C:18-3. N.J.S.A 2C:25-28a authorizes a victim to file a complaint alleging an act of domestic violence in the Family Part of the Chancery Division and to seek temporary restraints. N.J.S.A. 2C:25-28f-j. N.J.S.A. 20.25-29 then requires that a hearing be conducted within ten days, at which time the judge shall consider, among other things, in making his dual decisions whether to find the occurrence of domestic violence and whether to issue a final restraining order, "(1) [t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) [t]he existence of immediate danger to person or property;" and other factors that are not, relevant to the present proceeding. N.J.S.A. 2C:25-29a. The plaintiff must prove an act of domestic violence by a preponderance of the evidence. Ibid. Following the hearing, the judge may, among other relief, issue a final order "restraining the defendant from subjecting the victim to domestic violence, as defined in this act" or from making contact with the plaintiff. N.J.S.A 2C:25-29b.

In the present matter, the judge found harassment and assault to have occurred, but declined to find sexual assault or criminal sexual contact, determining that the complained-of conduct occurred, but that defendant lacked the requisite criminal intent.

N.J.S.A 2C:14-2c provides that "[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person" under several circumstances, including when "[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury." N.J.S.A. 2C:14-2c(1). To establish physical force for the purposes of N.J.S.A 2C:14-2, the plaintiff does not have to prove force in addition to "that necessary for penetration so long as the penetration was accomplished `in the absence of what a reasonable person would believe to be affirmative and freely-given permission.'" State v. Velasquez, 391 N.J.Super. 291, 319, 918 A.2d 45 (App.Div. 2007) (quoting State in the Interest of M.T.S., 129 N.J., 422, 444, 609 A.2d 1266 (1992)). Testimony by plaintiff at trial adequately established the absence of freely given permission.

N.J.S.A. 2C:14-3b provides that "[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c." "Sexual contact" is defined as "an intentional touching by the . . . actor, either directly or through clothing, of the victim's . . . intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A 2C:14-1. Neither the sexual assault statute nor the criminal sexual contact statute specifies the mental state that must be demonstrated in order to establish the defendant's criminal intent.

The trial judge found as a fact that defendant committed conduct that constituted a sexual assault and criminal sexual contact, but that defendant did not have the requisite criminal intent in doing so. His conclusion in this respect cannot be sustained. N.J.S.A. 2C:2-2c(3) establishes the principle that criminal statutes that do not designate a specific culpability requirement should be construed as requiring knowing conduct.

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 that nature, or that such circumstances exist. . . .

[ N.J.S.A 2C:2-2b(2).]

Defendant's conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.

As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State's statutes as the result of his religious beliefs. In doing so, the judge was mistaken.

Early law in this area arose out of prosecutions of Mormons who practiced polygamy. In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), the Supreme Court considered an appeal from a Mormon's conviction under a Congressionally passed bigamy statute applicable to the Utah territory. At trial, the defendant proved that, at the time of his second marriage, it was an accepted doctrine of the Church "that it was the duty of male members of said Church, circumstances permitting, to practice polygamy" and "[t]hat he had received permission from the recognized authorities in said Church to enter into polygamous marriage." Id. at 161, 25 L.Ed. at 248. As a consequence, defendant sought a charge to the jury that "if he was married . . . in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be `not guilty.'" Id. at 162, 25 L.Ed., at 249. The judge refused to give the charge, ibid., and defendant was convicted of the crime.

In affirming the conviction, the Court framed the issue in the following fashion: "Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land." Ibid. In resolving the issue, the Court noted that "Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Ibid. Nonetheless, the Court found that the First Amendment's guaranty of religious freedom was not intended to preclude the prohibition of polygamy and, therefore, enactment of the statute was within the legislative power of Congress "as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control." Id. at 166, 25 L.Ed., at 250. The Court further determined that those who made polygamy a part of their religion were not excepted from the statute's operation. Ibid.

If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

[ Id. at 166-37, 25 L.Ed., at 250.]

The Court then observed that "criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does." Id. at 167, 25 L.Ed. at 250. Because the defendant knew he had been married once and that his first wife was living, and he also knew that his second marriage was legally forbidden, when he married a second time he is presumed to have intended to break the law, thereby committing a crime. Ibid.

Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defen[s]e of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion; it was still belief, and belief only.

[W]hen the offense consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.

[ Ibid., 98 U.S. at 167, 25 L.Ed, at 250-51.]

See also Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12 (1946) (affirming the conviction of defendant practitioners of polygamy under the Mann Act upon a determination that they transported their wives across state lines for immoral purposes and a rejection of defendants' claim that, because of their religious beliefs, they lacked the necessary criminal intent).

Similarly, in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Court, relying on Reynolds, held in an often-quoted statement:

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.

[ Id. at 303-04, 60 S.Ct at 903, 84 L.Ed., at 1218.]

Reynolds and the language of Cantwell were utilized by the New Jersey Supreme Court in State v. Perricone, 37 N.J. 463, 472-74, 181 A.2d 751 (1962), an action affirming the appointment of a special guardian for the child of Jehovah's Witnesses in order to permit him to obtain a potentially lifesaving blood transfusion.

Over the years, the United State Supreme Court's treatment of Free Exercise Clause cases has changed. In brief, in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court reversed a denial of unemployment benefits to the plaintiff, a Seventh Day Adventist, because of her unwillingness to accept Saturday employment. In reversing, the court held that the government's action substantially burdened plaintiffs free exercise of religion, id. at 403-04, 83 S.Ct at 1793-94,10 L.Ed.2d at 970-71, and that its action was not justified by a compelling government interest in the regulation of a subject within the State's constitutional power to regulate. Id. at 406-09, 83 S.Ct. at 1795-96, 10 L.Ed.2d at 972-73. See also, Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-19, 101 S.Ct. 1425, 1432, 67 L.Ed.2dQ2A, 634 (1981) (applying Sherbert and holding that the denial of unemployment benefits to plaintiff who lost his job when he refused on religious grounds to manufacture armaments substantially burdened his exercise of religion and was not justified by a compelling governmental interest); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 141-42, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190, 197-98 (1987) (holding that the State could not condition the availability of unemployment insurance benefits on a person's willingness to forego conduct required by his religion).

We note, however, that the Sherbert Court observed:

The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such. . . . On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.

[ Id. at 402-03, 83 S.Ct. at 1792, 10 L.Ed.2d at 969-70.]

However, in Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 110 S.Ct 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that the Free Exercise Clause did not require Oregon to exempt the sacramental ingestion of peyote by members of the Native American Church from Oregon's criminal drug laws. Id. at 876-82, 110 S.Ct. at 1599-1602, 108 L.Ed.2d at 884-88. The Court determined that such valid, generally applicable, and neutral laws may be applied to religious exercise even in the absence of a compelling governmental interest. Id. at 882-89, 110 S.Ct. at 1602-06, 108 L.Ed.2d at 888-92. In doing so, the Court held that "[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections." Id. at 881, 110 S.Ct at 1601, 108 L.Ed.2d at 887. Further, the Court confined the balancing test of Sherbert v. Verner to cases invalidating denials of unemployment compensation, and it concluded that where a Sherbert analysis was applied in another context, it never resulted in an invalidation of the statute at issue. 494 U.S. at 883-84,110 S.Ct. at 1602-03,108 L.Ed.2d at 888-89. The Court stated:

The Court cited to Cantwell, supra, 310 U.S. at 304-07, 60 S.Ct. at 903-05, 84 L.Ed., at 1218-19; Murdoch v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) (same); and Wisconsin v. Yoder, 406 U.S. 205.92 S.Ct. 1526, 32 L.Ed.2d. 15 (1972) (finding Wisconsin's interest in compulsory education to be insufficient to overcome Amish parents' objection to such education as contrary to their religious beliefs).

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct.

[ Id. at 884, 110 S.Ct at 1603, 108 L.Ed.2d at 889.]

The Court concluded:

The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" — permitting him, by virtue of his beliefs, "to become a law unto himself," — contradicts both constitutional tradition and common sense.

[ Id. at 885, 110 S.Ct. at 1603, 108 L.Ed.2d at 889-90 (citations and footnote omitted).]

Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. § 2000bb to 2000bb-1, which resurrected the substantial burden test, providing that "[g]overnment shall not substantially burden a person's exercise of religion[,] even if the burden results from a rule of general applicability . . . [unless] it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest] and is the least restrictive means of furthering that interest." 42 U.S.C.A. § 2000bb-1(a) and (b).

However, in City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 2172, 138 L.Ed.2d 624, 649 (1997), the Supreme Court held that in enacting the RFRA, Congress had exceeded its enforcement power under § 5 of the Fourteenth Amendment, and thus the statute was unconstitutional as applied to the states. In response to Boerne, Congress enacted the Religious Land Use and Institutionalized Persons Act (the RLUIPA), 42 U.S.C.A § 2000cc to 2000cc-5, which has the same substantive standard as the RFRA but a considerably narrowed applicability. The RLUIPA applies when a substantial burden to the exercise of religion is imposed as the result of the government's regulation of land use by religious assemblies or institutions or by regulations affecting persons residing in an institution such as a prison. See 42 U.S.C.A. § 2000cc and § 2000cc-1. In either case, the receipt of federal financial assistance by the program or institution is required. Ibid.

No statute has been enacted that affects legislation of general application of the sort that is at issue here. It consequently appears that Smith continues to control our decision in this case. Because it is doubtlessly true that the laws defining the crimes of sexual assault and criminal sexual contact are neutral laws of general application, and because defendant knowingly engaged in conduct that violated those laws, the judge erred when he refused to recognize those violations as a basis for a determination that defendant had committed acts of domestic violence.

In this context, we note, as well, the Legislature's recognition of the serious nature of domestic violence, the responsibility of the courts to protect victims of such violence and its directive that the remedies of the PDVA be broadly applied. See N.J.S.A. 2C:25-18, quoted at length earlier in this opinion. The Legislature's findings and declaration provide an additional basis for the rejection of the judge's view of defendant's acts as excused by his religious beliefs, and for a recognition of those acts as violative of New Jersey's laws.

IV.

Following a finding that a defendant has committed a predicate act of domestic violence, the judge is required to consider whether a restraining order should be entered that provides protection to the victim.

Although this second determination — whether a domestic violence restraining order should be issued — is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. See N.J.S.A. 2C:25-29b (stating that "[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse"). . . .

Silver v. Silver, 387 N.J.Super. 112, 127, 903 A.2d 446 (App.Div. 2006).

In the present matter, the judge properly found that defendant had assaulted and harassed plaintiff in violation of the PDVA. However he declined to enter a final restraining order, determining that the domestic violence constituted merely a bad patch in a short-term marriage and did not result in serious injury to plaintiff, and that plaintiff and defendant had separated, a divorce proceeding was pending in Morocco, and the parties had no reason for further contact. Nonetheless, the judge recognized that contact between the parties would necessarily occur upon the birth of their child. The judge additionally appeared to be sufficiently concerned about the likelihood of renewed domestic violence to instruct defendant to have no contact with plaintiff. In this regard, he also relied upon the likelihood that a no contact order had been put in place as a condition of defendant's bail in the pending criminal proceedings against him arising from the acts of domestic violence that formed the basis for the civil action.

The judge's ruling raises several areas of concern that we regard as warranting reversal and a remand to permit the entry of a final restraining order. We construe the judge's characterization of the violence that took place as a bad patch in the parties' marriage and plaintiffs injuries as not severe as manifesting an unnecessarily dismissive view of defendant's acts of domestic violence. Although it is true that the November episodes spanned only three weeks, that period constituted approximately one-fourth of the parties' marriage. Moreover, we find it significant to the issue of whether a final restraining order should have been granted that the violence resumed on the very first night of the parties' reconciliation, and after defendant had assured the Imam that he would not engage in further such acts. We additionally note plaintiffs testimony that the significant bruising to her body shown on the photographs taken on November 22 merely represented the remnants of the bruising inflicted on November 1 and 16. In our view, the abuse that took place in this case was far removed from the domestic contretemps found not to constitute abuse in cases such as Kamen v. Egan, 322 N.J.Super. 222, 227-28, 730 A.2d 873 (App.Div. 1999); Corrente v. Corrente, 281 N.J.Super. 243, 248-50, 657 A.2d 440 (App.Div. 1995); and Peranio v. Peranio, 280 N.J.Super. 47, 54-56, 654 A.2d 495 (App.Div. 1995). We are also concerned that the judge's view of the facts of the matter may have been colored by his perception that, although defendant's sexual acts violated applicable criminal statutes, they were culturally acceptable and thus not actionable — a view that we have soundly rejected.

Additionally, we are troubled by the judge's seeming acknowledgement, at one point in the course of his decision, that restraints might be appropriate and his reliance on a no contact order that he presumed had been put in place in the pending criminal proceeding as affording adequate protection to plaintiff in the civil domestic violence matter. As a preliminary matter, we note that the judge did not verify the existence, terms or duration of the presumed order. Further, we have previously recognized that a complaint brought under the PDVA and a criminal proceeding brought for the same conduct "are separate and distinct matters." State v. Brown, 394 N.J.Super. 492, 504, 927 A.2d 569 (App.Div. 2007). There, we observed that "[t]he legislative history demonstrates that the Act `anticipates and provides for simultaneous or subsequent criminal proceedings' unimpacted by the other, except for a contempt proceeding." Id. at 505, 927 A.2d 569 (quoting Cannel, New Jersey Criminal Code Annotated (Gann 2007), comment on N.J.S.A 2C:25-29 (2007); N.J.S.A 2C:25-29). We stated in Brown:

As the Prevention of Domestic Violence Act demonstrate;;, the purpose of an action in the Family Part, designed to protect an individual victim, is quite different than a criminal case in which the State prosecutes a defendant on behalf of the public interest. The Act was enacted "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A 2C:25-18. The Legislature found that "it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions[.]" Ibid. The Act further states that "[a] victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act." N.J.S.A. 2C:25-26(f).

[ Brown, supra, 394 N.J.Super. at 504, 927 A.2d 569.]

We find it inappropriate, when restraints are civilly required, for a Family Part judge to rely on restraints issued in a parallel criminal proceeding. This is particularly the case because the need to protect the victim-spouse may outlive the termination of the criminal action.

As a final matter, we find that the judge failed to give sufficient measured consideration to the imminence of the birth of the couple's child — an event that the judge acknowledged would bring the two into contact and almost inevitably be a source of conflict. In this regard, we note that defendant's previous misconduct consisted not only of sexual acts that were unlikely to be repeated given the couple's estrangement, but also acts of assault and harassment that were more likely to be repeated in the future.

Viewing the evidence as a whole, we are satisfied that the judge was mistaken in determining not to issue a final restraining order in this matter in order to protect plaintiff from future abuse and in dismissing plaintiffs domestic violence complaint. We therefore reverse, and remand the case for entry of such an order.

Reversed and remanded.