1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

C.R. v. M.T. (A-58-19) (083760)

Argued November 30, 2020 -- Decided September 28, 2021

PIERRE-LOUIS, J., writing for a unanimous Court.

In this case, the Court considers for the first time the standard that should apply in 

determining whether an alleged sexual assault victim was too intoxicated to give consent

under the Sexual Assault Survivor Protection Act of 2015 (SASPA). 

In June 2018, plaintiff “Clara” and defendant “Martin” engaged in sexual activity

after a night of drinking. Plaintiff alleges she was too intoxicated to give consent, but 

defendant claims that the entire encounter was consensual. Plaintiff filed for a temporary 

restraining order pursuant to SASPA, which requires consideration of at least two factors, 

commonly referred to as the two “prongs” of SASPA: “(1) the occurrence of one or more 

acts of nonconsensual sexual contact . . . against the alleged victim; and (2) the possibility 

of future risk to the safety or well-being of the alleged victim.” N.J.S.A. 2C:14-16(a). 

After conducting a hearing, the trial court found both parties’ accounts to be 

“equally plausible.” Applying the preponderance of the evidence standard, the court 

concluded that Clara’s extreme voluntary intoxication rendered her “temporarily 

incapable of understanding the nature of her conduct” and that she had therefore been 

subjected to nonconsensual sexual contact within the meaning of SASPA’s first prong. 

Turning to the second SASPA prong, the judge noted the lack of evidence that Martin 

sought to contact Clara after their encounter. Nonetheless, recognizing that SASPA was 

intended to provide protection to victims of nonconsensual sexual contact, as well as the 

possibility that Martin “may now harbor a grudge against [Clara] which would probably 

not have occurred but for these proceedings,” the court concluded that “it is more likely 

than not that a final restraining order is appropriate.”

The Appellate Division reversed and remanded, holding that the proper standard to

assess whether plaintiff was incapable of consent due to intoxication was the prostration 

of faculties standard. The Court granted certification. 241 N.J. 329 (2020).

HELD: The appropriate standard to determine whether sexual activity was consensual 

under SASPA is not the prostration of faculties standard, which focuses on the mental 

state of the defendant, but rather the standard articulated in State in Interest of M.T.S., 
2

129 N.J. 422 (1992), which is applied from the perspective of the alleged victim. The 

M.T.S. standard requires a showing that sexual activity occurred without the alleged 

victim’s freely and affirmatively given permission to engage in that activity. The 

standard for consent for an alleged victim in a SASPA case should be no different than 

the standard for consent for an alleged victim in a criminal sexual assault case. The 

Court reverses and remands this matter to the trial court for assessment under the 

standard articulated in M.T.S.

1. SASPA is located within the Criminal Code in Chapter 14, which governs sexual 

offenses, but SASPA is not a penal statute. Rather, SASPA offers relief in the form of a 

civil protective order to alleged victims of nonconsensual sexual contact. A person may 

apply for, and the court may issue, a protective order under SASPA “regardless of 

whether criminal charges based on the incident were filed and regardless of the 

disposition of any such charges.” N.J.S.A. 2C:14-14(c)(1). A Superior Court judge may 

grant a temporary protective order and “any relief necessary to protect the safety and

well-being of an alleged victim.” Id. at -15(a). Upon an application for a final protective 

order, the Superior Court must hold a hearing and the applicant must prove the 

allegations by a preponderance of the evidence. SASPA provides that the court shall 

consider but not be limited to the factors commonly referred to as the two “prongs” of 

SASPA set forth in N.J.S.A. 2C:14-16(a). (pp. 16-18)

2. SASPA does not define “consent” or establish guideposts for determining when sexual 

activity is nonconsensual. In 1992, however, the Court issued M.T.S., a landmark 

decision that established affirmative consent as the standard in sexual assault cases. See

129 N.J. 422. In M.T.S., the Court conducted an extensive examination of the history of 

rape laws throughout the country, particularly the stigma that has historically been 

attached to alleged victims. The Court detailed the history of mistrust of victim 

testimony and concluded that the showing of resistance required in many jurisdictions 

had the effect of putting the rape victim on trial. To eliminate the burden victims bore of 

showing non-consent, the Court determined that the better standard was to look at 

whether permission to engage in sexual activity was freely and affirmatively given. The 

Court clarified that “permission may be inferred either from acts or statements reasonably 

viewed in light of the surrounding circumstances.” Id. at 444. (pp. 19-21)

3. In 2020, the Legislature amended the criminal sexual assault statute so that all 

references to “physical force” were removed and replaced with references to the standard 

adopted in M.T.S. See N.J.S.A. 2C:14-2. The Legislature acknowledged that since the 

M.T.S. decision, courts that consider sexual assault cases need to use both the statute and 

the court decision to determine the elements necessary for conviction. Although the 

Legislature in enacting SASPA in 2015 made no mention of how courts were to go about 

determining whether the sexual activity in question was nonconsensual, the Legislature 

was certainly aware of the M.T.S. holding and that courts had been applying the 

decision’s affirmative consent standard in the decades since that case. (pp. 21-23)
3

4. The Court reviews the prostration of faculties standard, which it has long applied to 

establish whether a criminal defendant was too intoxicated to form the requisite mens rea 

for a charged offense. Application of that standard here would impose on an alleged 

victim the high burden of establishing that she was too intoxicated to consent. But under 

New Jersey statutes and case law, the standard for consent applicable to an alleged victim 

and the standard for an intoxication defense applicable to an accused criminal defendant 

are different. A holding that alleged victims of sexual assault seeking a protective order 

should be held to the same standard as criminal defendants would set the Court’s law 

back decades to a time when alleged victims were the ones essentially put on trial, and 

would be inconsistent with the standard set forth in M.T.S. The Court finds it unlikely 

that the Legislature intended to incorporate the term “mentally incapacitated” from the 

criminal sexual assault statute into SASPA, given that it made no attempt to do so in 

drafting the plain language of the statute and its awareness of the M.T.S. standard. The 

language of N.J.S.A. 2C:14-16(b), further, is consistent with applying the standard set 

forth in M.T.S. and undermines any notion that the Legislature intended alleged victims 

of sexual assault to be put on trial with the prostration of faculties standard. (pp. 23-26)

5. The prostration of faculties standard is and has only ever been applied to alleged 

criminals seeking to evade culpability. That concept has no place in the Court’s 

jurisprudence as applied to alleged victims of sexual assault seeking a protective order. 

The Court remands the matter for reconsideration of the final restraining order and 

whether the sexual activity was nonconsensual utilizing the M.T.S. affirmative consent 

standard. (p. 27)

6. The Court’s remand encompasses a reconsideration of the second prong of SASPA --

whether there is a “possibility of future risk to the safety or well-being of the alleged 

victim.” N.J.S.A. 2C:14-16(a)(2). The trial court first noted that there was no evidence 

that defendant sought to contact plaintiff after the incident but then quickly found that 

prong two was satisfied because defendant was “subjected to legal fees and may now 

harbor a grudge against the plaintiff.” It cannot be that simply filing for a protective 

order is sufficient to satisfy prong two or it would be met in every single SASPA case. 

That could not have been the Legislature’s intention. The trial court’s factual findings 

appear to counter plaintiff’s establishing prong two. The Court remands so that the trial 

court may expand upon its abbreviated discussion of prong two and make additional 

findings of fact that support a determination that the prong has been satisfied, or not, in 

deciding whether to issue the final restraining order. (pp. 27-28)

REVERSED and REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,

FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-LOUIS’s 

opinion.
1

SUPREME COURT OF NEW JERSEY

A-58 September Term 2019

083760

C.R.,

Plaintiff-Appellant,

v.

M.T.,

Defendant-Respondent.

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at

461 N.J. Super. 341 (App. Div. 2019).

Argued

November 30, 2020

Decided

September 28, 2021

Andrew Vazquez-Schroedinger argued the cause for 

appellant (South Jersey Legal Services; attorneys, 

Andrew Vazquez-Schroedinger, Kenneth M. Goldman,

and Douglas E. Gershuny, on the briefs).

Nancy Kennedy Brent argued the cause for respondent 

(The Kennedy Brent Law Firm, attorneys; Nancy 

Kennedy Brent, on the brief).

Mary M. McManus-Smith argued the cause for amicus 

curiae (Legal Services of New Jersey, attorneys; Mary M. 

McManus-Smith, and Melville D. Miller, Jr., on the 

briefs).

CJ Griffin argued the cause for amici curiae New Jersey 

Coalition Against Sexual Assault and Partners for 
2

Women and Justice (Pashman Stein Walder Hayden; 

attorneys, CJ Griffin, of counsel, and on the brief).

Victoria L. Chase submitted a brief on behalf of amici 

curiae Rutgers School of Law (Camden) Domestic 

Violence Clinic and Domestic Violence Project (Rutgers 

Domestic Violence Clinic, attorneys; Victoria L. Chase, 

and Denise M. Higgins, on the brief).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.

In this case, we consider for the first time the standards required for 

entry of an order of protection to a sexual assault victim under the Sexual 

Assault Survivor Protection Act of 2015 (SASPA). Specifically, we are asked 

to resolve the standard that should apply in determining whether an alleged 

sexual assault victim was too intoxicated to give consent. After a night of 

drinking, plaintiff and defendant engaged in sexual activity. Plaintiff alleges 

that it was nonconsensual and that she was too intoxicated to give consent. 

Defendant claims that the entire encounter was consensual. Plaintiff filed for a 

temporary restraining order pursuant to SASPA. The trial court granted the

restraining order and found that plaintiff was too drunk to consent.

On appeal, the Appellate Division reversed and remanded the matter to 

the trial court and directed the trial court to conduct additional fact-finding 

regarding plaintiff’s level of intoxication that night. Specifically, the 

Appellate Division held that the proper standard by which the trial court must 
3

assess whether the alleged victim was too intoxicated to give consent is the 

“prostration of faculties” standard, a standard utilized only when criminal 

defendants assert intoxication as a defense to negate the requisite mens rea to 

commit a crime. The Appellate Division remanded the matter to the trial court 

for the application of the prostration of faculties standard.

We granted plaintiff’s petition for certification. We hold that the 

appropriate standard to determine whether sexual activity was consensual 

under SASPA is not the prostration of faculties standard, which focuses on the 

mental state of the defendant, but rather the standard articulated in a criminal 

case almost three decades ago in State in Interest of M.T.S., 129 N.J. 422 

(1992), which is applied from the perspective of the alleged victim. The 

M.T.S. standard requires a showing that sexual activity occurred without the 

alleged victim’s freely and affirmatively given permission to engage in that

activity. The standard for consent for an alleged victim in a SASPA case 

should be no different than the standard for consent for an alleged victim in a 

criminal sexual assault case. Because the trial court applied a different 

standard, we reverse and remand this matter for assessment under the standard 

articulated in M.T.S. 
4

I.

We rely on the testimony from the family court hearing for the following 

factual summary. 

On the evening of June 26, 2018, twenty-one-year-old Clara went to her 

close friend Sylvia’s house, with plans to go out to a bar together. 1 There, they 

drank Smirnoff Ice -- Clara consumed two shots and Sylvia took four shots --

before Sylvia’s roommate drove them to Cinder Bar. At the bar, Clara and 

Sylvia consumed more alcohol, until the bartender refused to serve them 

because Sylvia was being “really loud” and “really inappropriate for that 

setting.” Together on speaker phone, Sylvia and Clara called Sylvia’s cousin 

Martin, the defendant, and asked if he would join them there. Martin declined, 

stating he had to work early the next morning and that they should “go home” 

because they were drunk.

Sylvia’s roommate picked up Clara and Sylvia and took them to another

bar, where Clara had two more drinks. Around 11:00 p.m., the bartender --

who knew Martin -- texted him that “there’s a girl here saying that [she is 

your] cousin [with] a friend, and they seem to be all fired up.” To Sylvia and 

Clara’s surprise, Martin then arrived at the bar and said “[c]ome on, we’re 

1 Pseudonyms are used to protect the identities of the parties and witnesses in 

this matter.
5

leaving.” Clara responded that she had not finished her drink or paid yet, and 

Martin said to “chug [the drink] and not to worry about it.” Clara complied 

and left along with Sylvia in Martin’s car.

Sylvia asked Martin to take them home, but Martin said “[n]o. We’re 

just going to my house. I have work in the morning and [your roommate] can 

pick you up from my house.” When they arrived at Martin’s house, Martin put 

Sylvia to bed in his guest room with a bucket next to the bed because 

according to Martin, she was “really intoxicated.” Sylvia, however, wanted to 

stay up and drink some more, so she came out of the room a few times, and 

Martin returned her to the room each time. Meanwhile, Clara went to Martin’s 

fridge and had three more drinks. Martin testified that he “had a couple with 

them because [he] was up,” but stated that he was not drunk at the time.

At that point, Clara and Martin’s versions of events diverge.

A.

Clara’s Testimony

According to Clara, after Martin put Sylvia to bed, she remembers “kind 

of walking around in the main area for what felt like hours” as Sylvia kept 

coming back out of the bedroom and Martin kept putting her back to bed. 

Clara also recalled finding out that a close friend’s brother had cancer and 

going outside to call and console him. She said that her friend was mad at her 
6

for being so drunk on the phone and Sylvia and Martin came outside to bring 

her back into the house. Clara stated that after Sylvia went back to bed, Martin 

put Clara over his shoulder and carried her into the garage.

Clara testified that she made several attempts to leave the garage until 

Martin stood in front of the door. She said she knew she “couldn’t get out this 

time” because he was “blocking the doorway” and was “at least double 

[Clara’s] size.” Martin is over six feet tall and weighs roughly 280 pounds. 

Clara said that Martin told her multiple times to take off her pants, and 

although she did not comply at first, she eventually did, feeling “terrified 

because [she] didn’t see . . . another way out.” Clara testified that she heard 

him repeatedly say “I wanna eat the box.” She remembered seeing her 

underwear around Martin’s neck, and despite her efforts, he refused to give it 

back to her. Clara explained that Martin “was intimidating” and that she “was 

terrified.” The next thing she recalled was “being on [her] forearms and [her] 

shins and [Martin’s] head was behind [her and] between [her legs].” She “felt 

frozen” and told him “I don’t want this. I don’t want this. I don’t want this,” 

but Martin did not listen to her. Clara stated that Martin performed both oral 

sex and vaginal intercourse on her. Clara testified multiple times that she was 

heavily intoxicated during the encounter.
7

Clara said that when she realized that Martin had stopped, she left to go 

to the room where Sylvia was sleeping. She said that she laid down next to 

Sylvia and pretended to sleep. She remembered Martin coming into the room 

and looking over them before leaving.

Clara disclosed the assault to a friend, who took her to the police station 

to file a report on June 28, 2018. A detective took her to the hospital, where 

staff documented cuts and bruises on Clara’s arms, legs, and hip, and 

completed a sexual assault kit.

B.

Martin’s Testimony

Martin testified that his sexual encounter with Clara was entirely 

consensual. He stated that when he arrived home with Sylvia and Clara, he 

went to lay down on his bed. He said that he got up when he heard a 

“commotion” near the entrance to his house and went outside to find Sylvia 

and Clara “dancing and having a good time.” Martin testified that he went to 

“see if everything was all right” and told Sylvia to go to bed.

Martin testified that after he went back to his bedroom to sleep, Clara 

came in and asked for a blanket. Martin said that he gave her one off his bed 

and Clara took it to a couch in another room. According to Martin, after 

“laying there and then thinking it was really cold,” he went to look for his 
8

blanket and laid down on the couch with Clara. Then, Martin explained, 

“things started getting like a little hot and heavy,” with them “mutually 

kissing.” Martin said that Clara looked at him and asked if he had any 

condoms, to which he responded “[a]re you sure you still want to do this?” 

Clara replied, “Yes. But we have to go out to the garage because [Sylvia] 

already thinks I’m a whore.”

Next, Martin remembered they went to the garage and Clara took her 

pants off. He stated that he “performed oral” sex on Clara, after which Clara 

“got down on her hands and knees and [Martin] went to penetrate.” Martin 

testified that Clara then performed oral sex on Martin, crawling across the 

concrete floor on her hands and knees. Afterwards, they went to their 

respective bedrooms; Martin denied going to look at Clara in her room. 

According to Martin, Clara never indicated that she wanted to stop their sexual 

activities and he viewed the encounter as a “one-night stand.” However, he 

acknowledged that Clara was intoxicated.

Martin stated that he cooperated with the police and to his knowledge, 

he was never charged with a crime. A detective later came to speak with him 

and collected Clara’s underwear, which Martin retrieved from his bed. Martin 

claimed he had “no idea” how the underwear ended up there. Martin did not 

contact or communicate with Clara after the incident.
9

C. 

On July 2, 2018, Clara filed for a temporary protective order against 

Martin pursuant to SASPA, N.J.S.A. 2C:14-13 to -21. After conducting a 

plenary hearing, the trial court granted a final order of protection and issued a 

written opinion on August 7, 2018. The trial court judge recounted that Clara 

was tasked with proving the two SASPA elements by a preponderance of the 

evidence. In analyzing the first SASPA prong -- whether there was an act of 

nonconsensual sexual contact -- the court reviewed the factual findings and 

found both parties’ accounts to be “equally plausible.” The judge highlighted, 

however, that it was undisputed that Clara “was very intoxicated” at the time 

of the sexual encounter and that she “consumed at least 10 if not more 

alcoholic drinks during the course of the evening.”

To determine whether the sexual contact was consensual, the court 

looked to N.J.S.A. 2C:14-2, the criminal statute for aggravated sexual assault, 

and noted that its standard for non-consent included a victim “whom the actor 

knew or should have known . . . had a mental disease or defect which rendered 

the victim temporarily . . . incapable of understanding the nature of his 

conduct, including, but not limited to, being incapable of providing consent.” 

Acknowledging that our case law is silent on the issue of whether extreme 

voluntary intoxication could render a person temporarily incapable of 
10

understanding the nature of her conduct, the court looked to the New Jersey 

State Police’s website, which construed N.J.S.A. 2C:14-2 to include voluntary 

intoxication. 

Applying the preponderance of the evidence standard, the judge found it 

“more likely than not that [Clara] was too intoxicated to give consent,”

emphasizing the unusual choice for the parties to engage in sexual activities in 

the garage and noting that Clara would not have “subjected herself to these 

proceedings” if her actions were consensual. Thus, the court concluded that 

Clara’s extreme voluntary intoxication rendered her “temporarily incapable of 

understanding the nature of her conduct” and that she had therefore been

subjected to nonconsensual sexual contact within the meaning of SASPA’s 

first prong.

Turning to the second SASPA prong -- whether there was a possibility of 

future risk to the safety or well-being of the alleged victim -- the judge noted

the lack of evidence that Martin sought to contact Clara after their encounter. 

Nonetheless, recognizing that SASPA was intended to provide protection to 

victims of nonconsensual sexual contact, including people not in dating 

relationships, as well as the possibility that Martin “may now harbor a grudge 

against [Clara] which would probably not have occurred but for these 
11

proceedings,” the court concluded that “it is more likely than not that a final 

restraining order is appropriate.”

D.

Martin appealed and, in an unpublished opinion, the Appellate Division 

reversed and remanded for further findings on the first SASPA prong. In 

evaluating whether the trial court judge properly found Clara to be incapable 

of consent, the Appellate Division examined the definition of “mentally 

incapacitated,” as used in N.J.S.A. 2C:14-2(a)(7). After finding that the plain 

language of the definition included both voluntary and involuntary 

intoxication, the court considered the level of intoxication required to support 

a finding that a victim could not consent. 

The court began by looking to the criminal intoxication defense 

“because that defense challenges the actor’s ability to form the state of mind 

required by the offense charged.” The court noted that to establish such a 

defense, a defendant must demonstrate “such prostration of the faculties . . . as 

puts the accused in such a state [of being] incapable of forming” criminal 

intent. The Appellate Division determined that the prostration of faculties 

standard is proper for a SASPA analysis because “[t]he Legislature’s silence as 

to the degree of intoxication required in this context strongly suggests an 

intention to adopt the familiar standard that has been utilized in criminal 
12

matters.” Emphasizing that the question in this case goes to the same inquiry 

-- “ascertaining the intoxicated person’s ability to form a particular state of 

mind” -- the court found “no reason not to apply the ‘prostration of faculties’ 

standard.”

In applying that standard, the Appellate Division found that the trial 

court failed to make the proper factual findings to determine whether Clara 

was sufficiently intoxicated to be incapable of consent. Specifically, the court 

pointed to the lack of factors considered in State v. Cameron, 104 N.J. 42, 54 

(1986), including “the actor’s conduct as perceived by others,” what the actor 

“said” and how the actor “said it,” and “the actor’s ability to recall significant 

events.” Noting that “mere intoxication will not suffice,” the court remanded 

for further findings to determine whether Clara could demonstrate by a 

preponderance of the evidence that her faculties were prostrated.

We granted Clara’s petition for certification. 241 N.J. 329 (2020). We 

also granted amicus curiae status to Legal Services of New Jersey (Legal 

Services), the Domestic Violence Clinic and Project at Rutgers School of Law 

-- Camden (Rutgers), and the New Jersey Coalition Against Sexual Assault and 

Partners for Women and Justice.
13

II.

A.

Clara argues that the Appellate Division erred in applying the prostration 

of faculties standard of consent; rather, according to Clara, this Court’s 

affirmative consent standard in M.T.S., 129 N.J. 422, is controlling in 

determining “nonconsensual” sexual contact under SASPA. She emphasizes 

that the criminal prostration of faculties standard is wholly inapplicable to 

SASPA because, unlike the Prevention of Domestic Violence Act (PDVA), 

SASPA does not reference the criminal code in its definitions of predicate 

offenses. She asserts that the Legislature instead intended for the affirmative 

consent standard to govern because the Legislature is presumed to be aware of 

M.T.S. and judicial construction of its statutes. According to Clara, such a 

standard is more consistent with SASPA’s goal of protecting sexual assault 

victims because the victims’ subjective state of mind is irrelevant and because 

the M.T.S. standard does not require that victims bear the burden of proof to 

show lack of consent.

Amicus Legal Services largely echoes Clara’s arguments, asserting that 

the Appellate Division erred in deviating from the M.T.S. affirmative consent 

standard. Legal Services emphasizes that the more restrictive criminal 

aggravated sexual assault standard for consent undermines SASPA’s 
14

protection given that “[a]bout half of all sexual assault victims report that they 

were drinking alcohol at the time of the assault.” 

Amicus Rutgers supports Clara’s position and outlines the history and 

policy behind SASPA to provide context for its broad civil protections for 

victims of sexual assault. Like Clara and Legal Services, Rutgers maintains 

that the prostration of faculties standard is inapplicable to SASPA because 

SASPA does not incorporate the criminal code and because application of that 

standard here would impermissibly shift the burden of proof to the victim and 

thus run counter to SASPA’s goals. 

Amici New Jersey Coalition Against Sexual Assault and Partners for 

Women and Justice similarly argue that the affirmative consent standard 

should apply to SASPA. They emphasize that the prostration of faculties 

standard is intended for defendants seeking to escape liability for wrongdoing, 

not for plaintiffs seeking protective orders to prevent future harm. 

Furthermore, according to amici, such a standard is difficult for sexual assault 

victims to meet because they often proceed pro se, do not have a right to 

counsel, and lack access to evidence available to criminal defendants that 

would be helpful in establishing prostration of faculties.
15

B.

Martin counters that the Appellate Division decision should stand 

because the prostration of faculties standard is not an inappropriate or an 

unduly burdensome standard for SASPA applicants. He contends that under a 

prostration of faculties analysis for voluntary intoxication, the trial court must 

identify how intoxicated the victim was, which does not shift the burden of 

proof to the victim. Martin does not dispute whether affirmative consent is a 

more appropriate standard for SASPA, but instead asserts that Clara did, in 

fact, give affirmative consent because the trial court could not find that Clara 

did not consent by a preponderance of the evidence. He insists that a victim’s 

level of intoxication should be merely one factor for consideration in 

determining whether consent existed, which the Appellate Division 

appropriately weighed in its prostration of faculties analysis. Finally, Martin 

claims that if this Court finds sexual assault victims are unable to consent 

merely because they consume alcohol, such a view would be unduly 

paternalistic and misogynistic because it suggests women need someone else to 

decide their ability to consent for them.2 

2 The current sexual assault statute is gender neutral. See N.J.S.A. 2C:14-2. 
16

III.

Our determination of the appropriate standard in assessing whether an 

alleged victim under SASPA was incapable of consent due to intoxication is a 

question of law, so our review is de novo. See T.L. v. Goldberg, 238 N.J. 218, 

228 (2019). This Court, therefore, “owe[s] no deference to the legal 

conclusions reached by the trial court and Appellate Division.” Kaye v. 

Rosefielde, 223 N.J. 218, 229 (2015) (quoting Borough of Harvey Cedars v. 

Karan, 214 N.J. 384, 401 (2013)). 

Appellate courts will, however, defer to the trial court’s factual findings 

because the trial court has the “opportunity to hear and see the witnesses and 

to have the ‘feel’ of the case, which a reviewing court cannot enjoy.” State v. 

Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 

(1964)). Appellate courts owe deference to the trial court’s credibility 

determinations as well because it has “a better perspective than a reviewing 

court in evaluating the veracity of a witness.” Gnall v. Gnall, 222 N.J. 414, 

428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). 

A.

SASPA authorizes an alleged victim of nonconsensual sexual contact 

“who is not eligible for a restraining order as a ‘victim of domestic violence’”

under the domestic violence statutes to seek a protective order in the Superior 
17

Court. N.J.S.A. 2C:14-14(a)(1); L. 2015, c. 147, § 2 (eff. May 7, 2016). 

SASPA is located within the Criminal Code in Chapter 14, which governs 

sexual offenses, but SASPA is not a penal statute. Rather, SASPA offers relief 

in the form of a civil protective order to alleged victims of nonconsensual 

sexual contact. N.J.S.A. 2C:14-14. 

SASPA provides that 

[a]ny person alleging to be a victim of nonconsensual 

sexual contact, sexual penetration, or lewdness, or any 

attempt at such conduct, and who is not eligible for a 

restraining order as a “victim of domestic violence” as 

defined by the provisions of subsection d. of section 3 

of L. 1991, c. 261 ([N.J.S.A.] 2C:25-19), may, except 

as provided in subsection (b) of this section, file an 

application with the Superior Court pursuant to the 

Rules of Court alleging the commission of such conduct 

or attempted conduct and seeking a temporary 

protective order.

[N.J.S.A. 2C:14-14(a)(1).]

Significantly, a person may apply for, and the court may issue, a 

protective order under SASPA “regardless of whether criminal charges based 

on the incident were filed and regardless of the disposition of any such 

charges.” N.J.S.A. 2C:14-14(c)(1). A Superior Court judge may grant a 

temporary protective order and “any relief necessary to protect the safety and 

well-being of an alleged victim.” N.J.S.A. 2C:14-15(a); see also id. at (e)(6). 
18

A temporary protective order is “immediately appealable for a plenary hearing 

de novo not on the record.” N.J.S.A. 2C:14-15(d).

Upon an application for a final protective order, the Superior Court must 

hold a hearing within ten days. N.J.S.A. 2C:14-16(a). At the hearing, the 

applicant must prove the allegations by a preponderance of the evidence. Ibid. 

SASPA provides that 

[t]he court shall consider but not be limited to the 

following factors:

(1) the occurrence of one or more acts of 

nonconsensual sexual contact, sexual 

penetration, or lewdness, or any attempt at such 

conduct, against the alleged victim; and 

(2) the possibility of future risk to the safety or 

well-being of the alleged victim.

[Ibid.]

Those two factors are commonly referred to as the two “prongs” of SASPA. 

A court may issue a final protective order only “after a finding or an 

admission is made that the respondent committed an act of nonconsensual 

sexual contact, sexual penetration, or lewdness, or any attempt at such 

conduct, against the alleged victim.” N.J.S.A. 2C:14-16(e). Pursuant to 

N.J.S.A. 2C:14-16(b), a court “shall not deny” a final protective order on the 

basis of
19

the applicant’s or alleged victim’s failure to report the 

incident to law enforcement; the alleged victim’s or the 

respondent’s alleged intoxication; whether the alleged 

victim did or did not leave the premises to avoid 

nonconsensual sexual contact, sexual penetration, or 

lewdness, or an attempt at such conduct; or the absence 

of signs of physical injury to the alleged victim.

A final protective order remains in effect until further order of the Superior 

Court, and either party may petition the court to dissolve or modify a final 

order. N.J.S.A. 2C:14-16(i). 

B.

Although nonconsensual sexual contact forms the basis of a SASPA 

claim, the statute does not define “consent” or establish guideposts for 

determining when the sexual activity at issue is nonconsensual. In 1992, 

however, this Court issued M.T.S., a landmark decision that established 

affirmative consent as the standard in sexual assault cases. See 129 N.J. 422. 

In M.T.S., the defendant, who was seventeen at the time, sexually penetrated a 

fifteen-year-old girl without her permission. Id. at 425, 428. The trial court 

found the defendant delinquent of second-degree sexual assault, but the 

Appellate Division reversed because there was no evidence that the defendant 

used any force beyond that necessary to accomplish penetration. Id. at 428-30. 

On appeal, this Court conducted an extensive examination of the history 

of rape laws throughout the country, particularly the stigma that has 
20

historically been attached to alleged victims. Id. at 431-33. The Court 

detailed the history of mistrust of victim testimony and of “assuming that 

women lie about their lack of consent for various reasons: to blackmail men, 

to explain the discovery of a consensual affair, or because of psychological 

illness.” Id. at 433 (quoting Cynthia Ann Wicktom, Note, Focusing on the 

Offender’s Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 

56 Geo. Wash. L. Rev. 399, 401 (1988)). This Court explained how a showing 

of resistance eventually became the standard in many jurisdictions for 

determining consent, with courts assuming that “any woman who was forced 

to have intercourse against her will necessarily would resist to the extent of her 

ability.” Ibid. Indeed, this Court concluded it was clear that “the law put the 

rape victim on trial.” Id. at 434.

In an effort to eliminate the burden victims bore of showing nonconsent, the Court determined that the better standard was to look at whether 

permission to engage in sexual activity was freely and affirmatively given. Id.

at 444. In reversing the Appellate Division, the M.T.S. Court held 

that any act of sexual penetration engaged in by the 

defendant without the affirmative and freely-given 

permission of the victim to the specific act of 

penetration constitutes the offense of sexual assault. 

Therefore, physical force in excess of that inherent in 

the act of sexual penetration is not required for such 

penetration to be unlawful. 
21

[Ibid.]

The Court clarified that “permission may be inferred either from acts or 

statements reasonably viewed in light of the surrounding circumstances,” and 

that “[p]ermission is demonstrated when the evidence, in whatever form, is 

sufficient to demonstrate that a reasonable person would have believed that the 

alleged victim had affirmatively and freely given authorization to the act.” Id.

at 444-45. Further,

neither the alleged victim’s subjective state of mind nor 

the reasonableness of the alleged victim’s actions can 

be deemed relevant to the offense. The alleged victim 

may be questioned about what he or she did or said only 

to determine whether the defendant was reasonable in 

believing that affirmative permission had been freely 

given. To repeat, the law places no burden on the 

alleged victim to have expressed non-consent or to have 

denied permission, and no inquiry is made into what he 

or she thought or desired or why he or she did not resist 

or protest.

[Id. at 448.] 

In 2020, almost 30 years after the M.T.S. decision, the Legislature 

amended the criminal sexual assault statute for the specific purpose of 

reflecting the holding of M.T.S. See N.J.S.A. 2C:14-2. As noted in the 

Statement to the amendment, 

This bill replaces the term “physical force” in 

accordance with the New Jersey Supreme Court’s 

holding in State in Interest of M.T.S., 129 N.J. 422 

(1992), which holds that the only requirement for a 
22

conviction under the sexual assault statute is proof 

beyond a reasonable doubt that there was sexual 

penetration and that it was accomplished without the 

affirmative and freely-given permission of the victim.

[S. Law & Pub. Safety Comm. Statement to A. 2767

(Sept. 27, 2018).]

The revision was intended to make the statute “consistent with current relevant 

case law” and “incorporat[e] [M.T.S.’s] holding into the statute” by clarifying 

that “the only requirement for a conviction under the sexual assault statute is 

proof beyond a reasonable doubt that there was sexual penetration and that it 

was accomplished without the affirmative and freely-given permission of the 

victim.” Ibid. The Legislature further acknowledged that “since the M.T.S.

decision, courts that consider sexual assault cases need to use both the statute 

and the court decision to determine the elements necessary for conviction.” 

Ibid. The statute was amended so that all references to “physical force” were

removed and replaced with references to the standard adopted in M.T.S.

regarding the “victim’s affirmative and freely-given permission.” See L. 2019, 

c. 474. 

So, although the Legislature in enacting SASPA in 2015 made no 

mention of how courts were to go about determining whether the sexual 

activity in question was nonconsensual, the Legislature was certainly aware of 

the M.T.S. holding and that courts had been applying the decision’s 
23

affirmative consent standard in cases involving alleged nonconsensual sexual 

activity in the decades since that case was decided. 

C.

As noted above, the Appellate Division utilized the prostration of 

faculties standard in deciphering whether an alleged victim was too intoxicated 

to consent to sexual activity under SASPA. 

We have long applied the “prostration of faculties” standard to establish 

whether a criminal defendant was too intoxicated to form the requisite mens 

rea for a charged offense. See, e.g., State v. Cameron, 104 N.J. 42, 53-54 

(1986) (noting that “the requirement of ‘prostration of faculties’ as the 

minimum requirement for an intoxication defense” is “firmly fixed in our case 

law”); State v. Treficanto, 106 N.J.L. 344, 352 (E. & A. 1929). When the 

Criminal Code was enacted in 1979, it reflected the notion that self-induced 

intoxication is not a defense unless it negates an element of the offense --

specifically, conduct that is purposeful or knowing. Cameron, 104 N.J. at 51, 

58. That is still the law today. N.J.S.A. 2C:2-8(a), (b). 

The Cameron Court stated that “[i]n order to satisfy the statutory 

condition that to qualify as a defense intoxication must negative an element of 

the offense, the intoxication must be of an extremely high level.” 104 N.J. at 

54. This Court has identified six factors that help determine whether a 
24

criminal defendant’s voluntary intoxication rises to the level of “prostration of 

faculties,” including the quantity of intoxicant consumed, the time period, and 

the actor’s conduct as perceived by others, among other things. State v. 

Mauricio, 117 N.J. 402, 419 (1990) (quoting Cameron, 104 N.J. at 56). 

Overall, for a criminal defendant to invoke a prostration of faculties standard, 

it must be clear that the defendant “did not know what she was doing or that 

her faculties were so beclouded by the [alcohol] that she was incapable of 

engaging in purposeful conduct.” Cameron, 104 N.J. at 57. 

IV.

In reviewing those principles and the history of sexual assault 

jurisprudence in New Jersey, we hold that the affirmative consent standard 

articulated in M.T.S. is the correct standard to be applied in determining

whether sexual activity was nonconsensual under SASPA. 

In its holding, the Appellate Division found no reason not to apply the 

prostration of faculties standard, under which an alleged victim would have to 

bear the high burden of establishing that she was too intoxicated to consent. 

We disagree. 

Under our statutes and case law, the standard for consent applicable to 

an alleged victim and the standard for an intoxication defense applicable to an 

accused criminal defendant are different. Given the history of sexual assault in 
25

the law, as painstakingly detailed in M.T.S., a holding that alleged victims of 

sexual assault seeking a protective order should be held to the same standard 

as criminal defendants seeking to assert a defense would, quite frankly, set our 

law back decades to a time when alleged victims were the ones essentially put 

on trial. Applying the prostration of faculties standard in determining whether 

sexual activity was consensual is simply inconsistent with the standard set 

forth in M.T.S. 

The Appellate Division and the trial court’s heavy reliance on the 

criminal sexual assault statute, N.J.S.A. 2C:14-2, is misplaced. SASPA does 

not reference or incorporate the criminal statute at all. The Appellate Division 

conducted an extensive analysis of the provisions of the sexual assault statute

that criminalize penetration of a victim whom the perpetrator knew or should 

have known was “mentally incapacitated” in determining that the prostration 

of faculties was the appropriate standard. But although SASPA is contained 

within the same chapter of the Code, SASPA makes no reference to the 

criminal statute and never once uses the term “mentally incapacitated” to 

describe nonconsensual sexual conduct. It is unlikely that the Legislature 

intended to incorporate the language of the criminal statute into SASPA, given 

the fact that it made no attempt to do so in drafting the plain language of the 
26

statute. And, as the recent revision to the sexual assault statute reveals, the 

Legislature was aware of the M.T.S. standard.

The language of N.J.S.A. 2C:14-16(b), further, is consistent with 

applying the standard set forth in M.T.S. In -16(b), the Legislature outlined 

several factors that courts were not permitted to use in denying relief under 

SASPA, including the alleged victim’s or defendant’s alleged intoxication. 

Indeed, with N.J.S.A. 2C:14-16(b), it appears that the Legislature certainly did 

not envision an alleged victim’s intoxication to serve as a hurdle in seeking a 

protective order. The additional clauses in -16(b) -- which prohibit denying 

relief based on a victim remaining in the location where the unwanted contact 

occurred or the absence of signs of physical injury -- further support that 

interpretation. Like the proscription against considering intoxication, the 

prohibition of those additional outmoded considerations helps free the statute 

of the vestiges of a time when victims were presumed to lie about their lack of 

consent, were required to show that they had resisted to their utmost ability, 

and were required to “disclose the injury immediately, suffer signs of injury, 

and cry out for help” in order to be considered credible. See M.T.S., 129 N.J. 

at 433. The language in -16(b) undermines any notion that the Legislature 

intended alleged victims of sexual assault to be put on trial with the prostration 

of faculties standard, just as criminal defendants. 
27

In 2021, we cannot and should not go back in time to a period when it 

was the norm to shame, blame, and prosecute victims. The prostration of 

faculties standard is and has only ever been applied to alleged criminals 

seeking to evade culpability by showing that they could not have formed the 

requisite mens rea for the offense charged. That concept has no place in our 

jurisprudence as applied to alleged victims of sexual assault seeking a 

protective order. We therefore remand the matter to the trial court for 

reconsideration of the final restraining order and whether the sexual activity 

was consensual or nonconsensual utilizing the M.T.S. affirmative consent 

standard.

V.

Although the Appellate Division did not address the second prong of 

SASPA, we discuss it briefly because our remand encompasses a 

reconsideration of that prong as well. The second prong of SASPA requires 

the court to determine whether there is a “possibility of future risk to the safety 

or well-being of the alleged victim.” N.J.S.A. 2C:14-16(a)(2). The trial court, 

after conducting a detailed analysis on prong one, quickly found that prong 

two was satisfied. The trial court first noted that there was “no evidence that 

[defendant] sought to message or contact the plaintiff after their experience 

together” and that “it is doubtful that [defendant] thought of these events as 
28

anything more than as he testified a ‘one night stand.’” The court then 

determined, however, that because plaintiff initiated the restraining order

proceedings, defendant was “subjected to legal fees and may now harbor a 

grudge against the plaintiff which would probably not have occurred but for 

these proceedings,” so the court found that a restraining order was appropriate.

It cannot be that simply filing for a protective order is sufficient to create 

“the possibility of future risk to the safety or well-being of the alleged victim”

noted in prong two. If that were so, prong two would be met in every single 

SASPA case. That could not have been the Legislature’s intention. 

Here, the factual findings that the trial court put on the record appear to 

counter plaintiff’s establishing prong two of SASPA, and the trial court relied 

on the simple fact that plaintiff had sought a restraining order to conclude that 

“it is more likely than not that a final restraining order is appropriate” in this 

case. We remand so that the trial court may expand upon its abbreviated 

discussion of prong two and make additional findings of fact that support a 

determination either that the prong has been satisfied, or not, in deciding 

whether to issue the final restraining order.

VI.

The Appellate Division’s decision is reversed and the matter is 

remanded to the trial court for further proceedings consistent with this opinion.
29

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRELOUIS’s opinion.