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Filming Victims of Domestic Violence

When a domestic violence victim receives a restraining order with a no contact or communication provision against a defendant, it affords the victim protection against the defendant contacting or communicating with them. From time to time questions arise whether a particular action by the abuserdefendant constitutes contact or communication with the victim, violating the restraining order. The question before the court in the case of State of New Jersey v. D.G.M was whether sitting near and briefly filming a domestic violence victim constitute a violation of the “no contact and communication” portion of a restraining order.

State of New Jersey v. D.G.M

This case involved former spouses attending their child’s soccer game. The former wife had a Final Restraining Order (FRO) against the former husband. The ex-husband was allowed to attend the child’s soccer match, that action did not violate the FRO and is not in question. However, what is in question is the ex-husband’s conduct at the game. Specifically, the location where the ex-husband sat and his filming at the game are at issue in this appeal.

The evidence was not clear at trial whether the ex-husband was sitting too close to the ex-wife, but the appeals court notes that the evidence given by the ex-husband is that he sat 10 or 15 feet away from her. The court did not base its decision on whether the ex-husband violated the FRO by sitting too close to the wife. The reason the proximity of the parties is important is because the ex-husband video taped a portion of the game, and briefly included the ex-wife in part of the recording. At trial the judge found that the ex-husband violated the “no contact or communication” provision of the FRO by his actions in filming the ex-wife.

Sitting Near and Filming a Domestic Violence Victim is a Violation of a No Contact or Communication Order

On appeal, the court agreed with the trial court and found that the act of sitting near and briefly filming the ex-wife constituted a violation of the “no contact or communication” provision of the FRO. Specifically, the court found that the action of filming the ex-wife was a form of communication with her. The court held that a person bound by a “similarly-worded FRO engages in a "communication" by pointing a camera at a domestic violence victim from a standpoint close enough as to be observed by the victim.” The court further noted that the mere act of filming or staring at a victim sends a message to the victim that in many instances may be alarming, annoying, or threatening enough to constitute a violation of a no contact or communication provision of a FRO.

Fair Warning - The Rule of Lenity

However, the appeals court found that this particular defendant should not have been convicted for violating the FRO because he did not have fair warning that such behavior was prohibited, so he did not knowingly violate the FRO. The reasoning for the court’s decision is based on the rule of lenity, which says that a defendant is entitled to “fair warning of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25 (1931). In applying the rule of lenity, the court found that the ex-husband could not have anticipated that his conduct would have constituted a violation of the FRO. Therefore, the court reversed the lower court’s decision. In the future, those who are bound by a similar “no contact or communication” order in a restraining order are on notice that this type of behavior will constitute a violation.

If you are either bound by a restraining order or have a restraining order against another person and have questions about what constitutes a violation of the terms of that order, call the Law Offices of Peter Van Aulen for a free initial consultation.


State of New Jersey v. D.G.M, 439 NJ Super. 630 (App. Div. 2015)

McBoyle v. United States, 283 U.S. 25 (1931)

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