The New Jersey Supreme Court tackled an issue involving alcohol and consent. Plaintiff and Defendant engaged in sexual activity after a night of drinking. Plaintiff alleged she was too intoxicated to give consent, but Defendant claimed that the entire encounter was consensual. Plaintiff filed for a temporary restraining order under the Sexual Assault Survivor Protection Act of 2015 (SASPA). To determine if the sexual contact was nonconsensual, the trial court applied a preponderance of the evidence standard and then granted a final restraining order. The Appellate Division reversed. And the Supreme Court reversed the Appellate Division. The Court held that the appropriate standard to determine whether sexual activity was consensual under SASPA is the standard articulated in State in Interest of M.T.S., which is applied from the alleged victim’s perspective. This standard requires a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity. The Court ruled that the standard for consent for an alleged victim in a SASPA case should be no different from that for an alleged victim in a criminal sexual assault case.
