In the criminal justice system, charges are often dropped prior to the trial for a variety of reasons. In some cases, the victim decides he or she no longer wishes to press charges, which is very common between spouses and intimate partners. In many cases, the prosecutor will move forward with the case regardless of the victim's wishes, even if it's to offer the defendant the opportunity to plead to lesser charges. In the family courts, however, it's the victim's choice to go through with a formal hearing for the issuance of a final restraining order (FRO). Conversely, the victim can also choose to dismiss the complaint, or enter into a mutual consent order to limit communication with each other. While a consent order does impose civil restraints on the offending party, it does not offer protections such as immediate response by the police upon violation of its terms.
For some people, the dismissal of domestic violence charges would imply that those charges could not be used against the defendant in the future. When you apply for a job, for example, an employer cannot disqualify you based on a dismissed criminal complaint. The question whether or not dismissed domestic violence complaints can be used to establish a history of abuse was recently brought up in the case of M.D. v. P.D. In the original case, the plaintiff had filed two domestic violence complaints, the first of which was dismissed by mutual consent of both parties, who entered into a consent order with civil restraints for the defendant. During the hearing for the second complaint, the plaintiff's attorney questioned her about the first complaint, to which the defendant's counsel objected, stating that the complaint was dismissed by the matrimonial judge.
The trial judge allowed the testimony on the basis that the court made no determination whether an act of domestic violence had occurred. The consent order appeared to be an exchange for dismissing the complaint, not as an acknowledgment of the defendant's innocence or lack of evidence by the plaintiff. The Appellate Division upheld this decision in their October 2017 ruling, in consideration of the fact that the dismissal was solely based on the mutual consent order. There was no other finding during that first hearing to support the idea that domestic violence had or had not occurred, thus the events of that first incident must be examined as part of a possible history of domestic violence.
Their decision affirms New Jersey's policy of offering a comprehensive range of protections to victims of domestic violence. Victims should be aware of their rights and legal options under the state's Prevention of Domestic Violence Act, as well as the difference between a consent order and a restraining order. In addition to enhanced protections for the victim, a restraining order clearly establishes that an act of domestic violence had occurred. For more information on protecting yourself from domestic violence, please speak with the attorneys of Villani & DeLuca, P.C.