Domestic Violence and Due Process:
Crespo v. Crespo and the Need for a
Higher Standard of Proof
Mary Hutton
I. INTRODUCTION
The Fourteenth Amendment of the Constitution provides that no state
shall deprive an individual of "life, liberty, or property, without due process
of law."' The question of what constitutes due process of law has been
divided into two inquiries: whether the government action in question
meets procedural due process requirements, and whether it meets those of
substantive due process. 2 The term "procedural due process . .. refers to
the procedures that the government must follow before it deprives a person
of life, liberty or property." 3 Substantive due process inquiries deal with the
nature of the potential deprivation and the adequacy of the government's
reasoning.4 If the government action "is in an area where strict scrutiny is
used, such as for protecting fundamental rights, then the government will
meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose." 5
Where both the government and the affected individuals have
fundamentally important interests at stake, due process can pose an all but
intractable problem. Domestic violence cases, such as the case discussed
herein, can present stark examples. It is beyond dispute that the government
has a strong interest in protecting victims of domestic violence. In the
United States, "women experience about 4.8 million intimate partnerrelated physical assaults and rapes per year"; and in 2005, an average of
three women were killed by their partners every day. 6 At the same time,
§ 1.
1.
U.S. CONsT. amend. XIV,
2.
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 545 (3d
ed. 2006).
3. Id.
4.
Id. at 546.
5. Id.
6.
Violence Against Women in the United States: Statistics, NAT'L ORG. FOR WOMEN
103
CRIMNAL AND CIVIL CONFINEMENT
104
[Vol. 37:103
defendants can face drastic consequences if they are convicted.7 While
some have argued that the high risk to defendants requires that all domestic
violence charges be handled by the criminal justice courts, subject to the
highest procedural protections, that may be infeasible. Instead, this
Comment will argue that the New Jersey courts should consider adopting a
"clear and convincing" standard of proof when deciding whether to award a
Final Restraining Order (FRO) due to the high risk and severe
consequences of erroneous deprivation, as well as the nature of domestic
violence cases, which are often difficult to prove and to defend.9
In 1991, the New Jersey Legislature enacted section 2C:25-17 of the
New Jersey Statutes, the Prevention of Domestic Violence Act
(PODVA).' The legislature found that although existing criminal statutes
were applicable to crimes of domestic violence, "societal attitudes
concerning domestic violence [had] affected the response of [their] law
enforcement and judicial systems, resulting in these acts receiving different
treatment from similar crimes when they occur[red] in a domestic
context."" The PODVA provides for a victim of alleged domestic violence
to file for a Temporary Restraining Order (TRO) at any time.12 At that
point, a hearing must be scheduled within ten days before a judge of the
Family Part of the Chancery Division of the Superior Court to determine
whether or not to issue an FRO.13 The acts which are defined as "domestic
violence" under the New Jersey statute range from homicide to lewdness,
and are all defined as criminal offenses under state law.14 Relief available
under the statute includes: "granting exclusive possession . .. of the
residence" to the victim of the alleged abuse; ordering the accused to
provide both emergency and ongoing financial support to the victim and
any dependents;' 5 ordering the accused to make mortgage payments or
continue rent, even after eviction from the residence; compensatory and, in
some cases, punitive damages; and prohibition from returning to the scene
http://www.now.org/issues/violence/stats.html (last visited Dec. 07, 2009).
7. See Crespo v. Crespo (Crespo l), No. FV-09-2682-04, 17-18 (N.J. Super. Ct. Ch.
Div. June 18, 2008).
8. See, e.g., David N. Heleniak, The New Star Chamber: The New Jersey Family
Court and the Prevention of Domestic Violence Act, 57 RUTGERS L. REv. 1009, 1042
(2005).
Santosky v. Kramer, 455 U.S. 745, 747-48 (1982).
Prevention of Domestic Violence Act, N.J. STAT. ANN. § 2C:25-17 (West 2008).
N.J. STAT. ANN. § 2C:25-18.
12.
N.J. STAT. ANN. § 2C:25-28.
13.
N.J. STAT. ANN. § 2C:25-29.
14.
N.J. STAT. ANN. § 2C:25-19.
15.
N.J. STAT. ANN. § 2C:25-29. Ongoing support is only granted upon the award of
an FRO. Domestic Violence, NJ COURTS ONLNE, http://www.judiciary.state.nj.us/family/
fam-06.htm (last visited Oct. 19, 2010).
9.
10.
11.
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
105
of the alleged violence.16 The statute also provides for both the temporary
award of sole custody of their children to the victim, and for a presumption
in favor of the (alleged) victim in a final custody decision." Most
significantly, for the purposes of this Comment, PODVA requires that the
standard of proof used in these domestic violence hearings be a
"preponderance of the evidence." 18
In 2008, Anibal Crespo brought a constitutional challenge to an FRO
imposed upon him on behalf of his former wife, Vivian Crespo.19 Anibal
prevailed in his appeal,2 0 with the court holding that New Jersey's PODVA
was unconstitutional under the Due Process Clause of the Fourteenth
Amendment. 2 1 Specifically, the court found that the preponderanceof the
evidence standard of proof mandated by the PODVA was insufficient as
first articulated by the United States Supreme Court in Mathews v.
Eldridge.2 2 However, this holding was subsequently overturned on appeal,
and the FRO was reinstated.23
This Comment will argue that in overturning the lower court's decision,
the superior court did not sufficiently address its constitutional analysis.
The lower court, in declaring the PODVA unconstitutional, relied upon the
three-part test in Mathews. 4 This test requires courts to examine three
factors in government proceedings that stand to deprive individuals of life,
liberty, or property: the nature of the private interest at stake; the risk of
erroneous deprivation; and the countervailing government interest.2 5
Conceding that the government's interest in protecting victims of domestic
violence was strong, the lower court nevertheless held that the interests the
accused stands to be deprived of in a domestic violence case require greater
procedural protection than given under PODVA.2 6 Furthermore, the risk of
erroneous deprivation is particularly hi h in domestic violence cases,
mandating a heightened standard of proof. 7
16.
N.J. STAT. ANN.
§
2C:25-29; see also Domestic Violence, NJ COURTS ONLINE,
http://www. judiciary.state.nj.us/family/fam-06.htm (last visited Oct. 19, 2010).
17.
N.J. STAT. ANN. § 2C:25-29.
18.
Id.
19.
Crespo v. Crespo (Crespo 1), No. FV-09-2682-04, 17-18 (N.J. Super. Ct. Ch. Div.
June 18, 2008).
20.
Id. at 20.
21.
Id. at 19.
Id.
22.
Crespo v. Crespo (Crespo II), 972 A.2d 1169, 1181 (N.J. Super. Ct. App. Div.
23.
2009).
24.
Crespo I, No. FV-09-2682-04, at 17.
25.
Id.
Id. at 18.
26.
27.
Id.
CRIMINAL AND CIVIL CONFINEMENT
106
[Vol. 37:103
This Comment will consider the constitutional context in which Crespo
v. Crespo (Crespo 1)28 was decided; the development of the Mathews 29
balancing test; and the greater protections historically granted when the
individual stands to be deprived of certain fundamental rights, including the
rights to custody of his or her children, particularly when the risk of
erroneous deprivation is high. Part II of this Comment will look at the
development of the Mathews test. Part III will turn to Crespo v. Crespo
(Crespo 11), 30 and will examine why the constitutional arguments raised in
the lower court's decision remain unresolved. Part IV will look at major
criticisms of PODVA and similar statutes. Part V will discuss the
implications of the court's holding in Crespo II. Part VI concludes the
holding should be revisited in order to comply with Mathews, and to begin
the difficult task of balancing the need to protect victims with the rights and
interests of defendants.
II. PROCEDURAL DUE PROCESS: THE DEVELOPMENT OF THE
MATHEWS V. ELDRIDGE BALANCING TEST
In 1976, the Mathews court ruled that the Constitution did not require an
evidentiary hearing prior to the termination of the plaintiffs disability
benefits. 3 In so doing, the Supreme Court attempted to contain the impact
of its prior holding in Goldberg v. Kelly that the Due Process Clause did
entitle a welfare recipient to an evidentiary hearing prior to termination of
benefits. 32 In order to provide lower courts with some guidance in
determining what a particular situation demanded, the Court requires
decision-makers to weigh:
First, the private interest that will be affected by official action; second,
the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would
entail. 33
The three Mathews factors are interactive; the more important the private
interest at stake, the greater the state's obligation to ensure that risk of
erroneous deprivation is low.34 Conversely, the less important the
28.
29.
30.
31.
32.
33.
34.
Id.
Mathews v. Eldridge, 424 U.S. 319 (1976).
Crespo v. Crespo (Crespo II), 972 A.2d 1169 (N.J. Super. Ct. App. Div. 2009).
Mathews, 424 U.S. at 349.
Goldberg v. Kelly, 397 U.S. 254, 264 (1970).
Mathews, 424 U.S. at 335.
Id. at 334.
DOMESTIC VIOLENCE AND DUE PROCESS
2011]
107
individual's private interest, and the more important that of the state, the
greater the risk of wrongful deprivation the state is allowed to tolerate. 3 5
Disability benefits are distinguishable from welfare benefits, the Court
reasoned, because they are not given on the basis of financial need.3 6
Turning to the second factor, the majority wrote that the risk of erroneous
deprivation in this case was relatively low, given that the decision "to
discontinue disability benefits will turn, in most cases, upon 'routine,
standard, and unbiased medical reports by physician specialists."' 37 Finally,
the Court concluded that the state's interest in avoiding the heavy "fiscal
and administrative burdens" of providing a full evidentiary hearing prior to
revocation of benefits was substantial and not outweighed by the relatively
low importance of the private interest at stake and risk of erroneous
deprivation under the procedure currently in use. 38
A. When the Private Interest at Stake is a Fundamental Right
Analysis of the first Mathews factor implicates substantive as well as
procedural due process rights. 39 If the private interest is considered a
fundamental right, that consideration will weigh heavily in favor of greater
due process protections. 40 Child custody cases typically provide an
example of where procedural and substantive due process rights intersect.
The Supreme Court "has held that parents have a liberty interest in the
custody of their children," an interest which requires the government to
observe strict procedural protections before depriving a parent of custody. 4 1
As the "right to custody [of one's child] is deemed a fundamental right,
substantive due process requires that the government prove that terminating
custody is necessary to achieve a compelling [state interest]." 4 2
In Santosky v. Kramer, the Court dealt with a challenge to a New York
statute that allowed for the termination of parents' rights upon a finding
that their children were "permanently neglected.A 3 New York courts
applied a "fair preponderance of the evidence" standard of proof in
determining permanent neglect. 44 The Supreme Court held that the
application of this standard of proof under these circumstances was
35.
36.
37.
38.
39.
40.
41.
Id.
Id. at 340-41.
Id. at 344 (quoting Richardson v. Perales, 402 U.S. 389, 404 (1971)).
Id. at 335.
See CHEMERINSKY, supra note 2, at 545-46.
See id at 546.
Id.
42.
Id.
Santosky v. Kramer, 455 U.S. 745, 747 (1982) (quoting N.Y. Soc. SERV. LAW §§
43.
384-b.4(d), -b.7(a) (McKinney 2010)) (internal quotation marks omitted).
44.
Id.
108
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 37:103
unconstitutional, requiring New York courts to apply the more stringent
clear and convincing evidence standard.45 Justice Blackmun, writing for the
majority, stated the Supreme Court's "historical recognition that freedom
of personal choice in matters of family life is a fundamental liberty interest
protected by the Fourteenth Amendment.'A 6 Justice Blackmun argued that
the protection of this fundamental liberty interest becomes even more
important when the family situation is less than ideal, stating that: "When
the State moves to destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures." 47
In summary, the Court held that the parental rights of the plaintiffs
implicated "[t]he fundamental liberty interest of natural parents in the care,
custody, and management of their child." Thus, the standard of proof must
be raised in order to diminish the risk that they be erroneously deprived of
that "fundamental" interest. 48
B. The Need for a High Standard of Proof When the Government
Action Risks Subjecting the Individual to Public Stigma
The Court previously dealt with the issue of standard of proof in
Addington v. Texas. 49 The appellant in that case, Frank Addington,
challenged his civil commitment after a psychiatric examiner conducted an
interview and found that he was "mentally ill and require[d] hospitalization
in a mental hospital." 50 The medical examiner's finding was later upheld at
a jury trial, in which the judge asked the jury members to consider whether
the appellant was both mentally ill and in need of hospitalization "[b]ased
on clear, unequivocal[,] and convincing evidence." 5 1 However, Texas only
required that courts employ a "preponderance-of-the-evidence standard"
prior to civilly committing a person found to be suffering from mental
illness. 52 While the Court found the judge's instruction in Addington to be
"constitutionally adequate" it nevertheless remanded the case to determine
what standard of proof due process required.53 The Court's analysis in
Addington is highly relevant because it points out a "continuum [of] three
standards or levels of proof for different types of cases." 54 Civil cases,
which involve monetary disputes where society is generally thought to
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
Id. at 748.
Id. at 753.
Id. at 753-54
Id. at 753, 769.
Addington v. Texas, 441 U.S. 418, 432-33 (1979).
Id. at 420.
Id. at 421.
Id. at 432-33.
Id. at 433.
Id. at 423.
DOMESTIC VIOLENCE AND DUE PROCESS
2011]
109
have little interest in the outcome, are at one extreme.55 At the other are
criminal cases, in which the interests at stake for the defendant are so high
that "society imposes almost the entire risk of error upon itself."56 Certain
civil cases fall between these two extremes, due to the nature of the
interests at stake:
One typical use of the [intermediate] standard is in civil cases involving
allegations of fraud or some other quasi-criminal wrongdoing by the
defendant. The interests at stake in those cases are deemed to be more
substantial than mere loss of money and some jurisdictions accordingly
reduce the risk to the defendant of having his reputation tarnished
erroneously by increasing the plaintiffs burden of proof. Similarly, this
Court has used the "clear, unequivocal and convincing" standard of
proof to protect particularly important individual interests in various
civil cases.57
The Addington court opted for the middle-ground.s Justice Burger, writing
for the majority, noted that in addition to the obvious liberty interest at
stake in a civil commitment proceeding, "it is indisputable that involuntary
commitment to a mental hospital after a finding of probable dangerousness
to self or others can engender adverse social consequences to the
individual." 59 The Court did not agree with Addington's contention that
civil commitment proceedings ought to use the "beyond a reasonable
doubt" standard.6 0 Instead, it held that the consequences of civil
commitment, while significant, were not comparable to those of a criminal
conviction, though in so finding the Court emphasized the procedural
protections Texas already had in place. 6 1 The clear and convincing standard
was found to be both necessary and adequate to "strike a fair balance
between the rights of the individual and the legitimate concerns of the
state." 62
C. A Preponderance Standard is Acceptable When the Reasons for
Deprivation of Interest Can Be Objectively Measured
In re Polk involved a medical doctor's challenge to the revocation of his
license to practice medicine after he was found to have made inappropriate
55.
Id.
56.
57.
58.
59.
60.
61.
62.
Id at 423-24.
Id. at 424 (emphasis added).
Id at 427.
Id at 425-26.
Id at 427-29.
Id. at 428 n.4.
Id at 431.
110
CRIMNAL AND CIVIL CONFINEMENT
[Vol. 37:103
sexual advances towards his patients. 63 The state's Board of Medical
Examiners (Board) found the evidence against him was credible, 64 and
Polk appealed arguing that the "preponderance of the evidence" standard
the Board used violated his right to due process. 65 The appellate division
reversed, finding that "considerations of fundamental fairness ...
demand ... the clear and convincing standard of proof," in part because
lawyers themselves are granted a "clear and convincing" evidentiary
standard in similar proceedings. 66 Applying the Mathews test, the Supreme
Court of New Jersey reversed the appellate division. 67 Citing Santosky and
Addington, the court reasoned:
From a constitutional standpoint, the clear and convincing standard has
been found to be required as a matter of due process when the
threatened loss resulting from civil proceedings is comparable to the
consequences of a criminal proceeding in the sense that it takes away
liberty or permanently deprives individuals of interests that are clearly
fundamental or significant to personalwelfare.68
Additionally, the court noted that a clear and convincing standard is most
apt to be required in situations where "the subject matter itself is
intrinsically complex and not readily amenable to objective assessment." 69
"These situations," the court noted, "reasonably call for an allocation and
enhancement of the burden of proof to compensate for the difficulties
encountered in determining the contested issues." 70
The issues in a medical licensing case do not require such a heightened
standard of proof; "[w]hile these standards are broad, they are capable of
objective measurement."7 1 The relative transparency of the factual issues at
stake lowers the risk of erroneous deprivation enough to make a
preponderance of the evidence sufficient under Mathews.72
These three cases, Santosky, Addington, and Polk, played an important
role in the lower court's decision to invalidate the FRO against Anibal
Crespo.73 Santosky established that parents have a liberty interest in
retaining custody of their children, such that the state was required to
See In re Polk, 449 A.2d 7, 10-11 (N.J. 1982).
63.
Id. at 11-12.
64.
Id. at 12.
65.
Id. at 11.
66.
Id. at 13, 22.
67.
Id. (emphasis added).
68.
Id. at 16.
69.
Id.
70.
Id. at 15.
71.
72.
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
See Crespo v. Crespo (Crespo 1), No. FV-09-2682-04, 16-20 (N.J. Super. Ct. Ch.
73.
Div. June 18, 2008).
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
I11
determine their unfitness by "clear and convincing evidence" under the
Due Process Clause.74 Addington held that a higher standard of proof is
required when the government's action may erroneously tarnish an
individual's reputation. 75 Finally, the Supreme Court of New Jersey, citing
these cases, has held that the standard of proof the Due Process Clause
requires is in part dependent upon the complexity of the subject matter and
the ease or difficulty of objective assessment of the issues. 76
III. CRESPO V. CRESPO
A. Crespo I:77 PODVA is Found Unconstitutional
1. A question of credibility
Vivian and Anibal Crespo divorced in 2001 after seventeen years of
marriage.7 8 The two continued to reside together even after their divorce:
Vivian Crespo on the first floor with the couple's children and Anibal
Crespo on the second floor with his Xarents. 79 On March 16, 2004, the two
argued over child support money. During that argument, Ms. Crespo
alleged that her former husband "smacked her in the face ... and pulled on
her arms, causing bruising."8 1 Mr. Crespo denied striking his ex-wife,
claiming instead that she attacked him while he was sitting in his car, and
he rolled up the car window in order to protect himself.82 That same day
Ms. Crespo filed for, and obtained, a TRO.83 In her complaint, she
"described numerous incidents of previous domestic violence over the past
fifteen years," but had never previously filed a report. 84 Thus, despite the
objective signs of physical injury present, the trial judge described the case
as one hinging upon a "he said, she said" judgment of credibility.8 5
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
Santosky v. Kramer, 455 U.S. 745, 746 (1982).
Addington v. Texas, 441 U.S. 418, 424 (1979).
In re Polk, 449 A.2d 7, 16 (N.J. 1982).
Crespo I, No. FV-09-2682-04, at 1.
Id. at 2.
Id
Id
Id. (internal quotation marks omitted).
Id
Id.
Id.
Id at 18-19.
112
CRIMNAL AND CIVIL CONFINEMENT
[Vol. 37:103
2. A balancing of interests
Mr. Crespo argued that PODVA violated his constitutional rights on four
separate grounds as it: denied him his right to a trial by jury; 86 violated his
Second Amendment right to bear arms;8 7 violated his First Amendment
right to speak freely with his ex-wife and children;8 8 and deprived him of
his interests under an unconstitutionally low standard of proof.89 The lower
court ruled against the defendant on every issue except the standard of
proof.90 Additionally, the court considered, but ultimately disagreed with
Crespo's argument that PODVA unjustly treats criminal matters as civil
disputes. 9 1 Noting the concern that the due process protections given to a
defendant depend on who signs the complaint, 2 the Crespo court
nevertheless held that PODVA is intended to be remedial, not punitive,
meaning that it in fact is not punitive. 9 3 In addition, the court cited the
strong policy arguments in favor of providing civil remedies for victims of
domestic violence, given the irreparable injury victims would suffer were
they not given a means of acquiring injunctive relief prior to a lengthy
.
.94
criminal . trial.
The lower court nevertheless found for the defendant in holding PODVA
unconstitutional, based upon its provision that the standard of proof in
domestic violence cases be a preponderance of the evidence. 95 Reasoning
that the Due Process Clause must be considered in "any serious discussion
of the standard of proof,"9 6 the lower court noted that no previous New
Jersey cases had considered whether PODVA could stand up to the
Mathews balancing test mandated by the Supreme Court.9 7 Applying this
analysis for the first time, the court in Crespo I held that PODVA failed the
86.
Id. at 4, 11-12.
Id. at 11. Because a finding of domestic violence can result in a loss of the right to
87.
possess firearms, Crespo argued that it violated the Second Amendment. Id. The state of
New Jersey, however, does not recognize an individual's right to bear arms under the
Second Amendment, so the court did not find it necessary to address this issue. Id.
88.
Id. at 10.
89.
Id. at 4.
90.
Id. at 18-19.
91.
Id. at 5-10.
92.
Id. at 6.
93.
Id. at 7.
94.
Id. at 9.
Id. at 19. The lower court also found PODVA unconstitutional in that its
95.
procedural provisions violated the separation of powers between the legislature and
judiciary under the New Jersey state constitution. Id. at 16. However, this comment focuses
solely on the due process issues implicated in the court's ruling.
96.
Id. at 16.
97.
Id. at 17.
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
113
Mathews balancing test, finding it unconstitutional.9 8
The first prong of the Mathews test weighs the nature of the private
interest at stake.9 9 In Santosky, the Supreme Court further held that the
parents' right to the care and custody of their children was precisely the
sort of private interest that was so important as to require, at a minimum, a
"clear and convincing evidence" standard be used for the state to deprive
them of that right.' 0 0 The court in Crespo I reasoned that because one of
the most significant impacts of an FRO was "the defendants' inability to be
with or maintain their relationship with their children," 0 1 FRO proceedings
require the same minimal standard of proof the Supreme Court mandated in
Santosky.'0 2
The lower court dealt briefly with the second prong of Mathews,
acknowledging that the state's interest in protecting the victims of domestic
violence was "extremely strong," but could "be no greater than [the state's]
interest in protecting children from abuse and neglect."' 0 3 Analysis must
therefore proceed to the third prong of Mathews. 104
Moving to the third prong, the court considered the risk of erroneous
deprivation in domestic violence cases. 105 The court examined the holding
of the Supreme Court of New Jersey in Polk that a lesser standard of proof
was permissible in cases dealing with medical licensing, but for reasons
that often do not pertain to domestic violence proceedings.106 In Polk, "one
of the factors weighing in favor of a lesser standard was the
acknowledgment that 'what' has to be proved (i.e., the substantive burden)
is so high a standard that a lesser standard of proof (procedurally) is
allowable." 0 7 This was particularly true because those substantive issues
98.
Id. at 18-19.
99.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Santosky v. Kramer, 455 U.S. 745, 746 (1982).
100.
Crespo I, No. FV-09-2682-04, at 17.
101.
Id at 17-18. This raises the question of how to analyze civil domestic violence
102.
proceedings in which children are not involved. The lower court did not explicitly address
this issue, though it cited Addington in support of the argument that a higher standard was
required whenever the proceeding "resembles a criminal trial" or "may actually tarnish an
individual's reputation." Id. Being subject to an FRO upon a finding that he or she is guilty
of acts of domestic violence would seem to subject a defendant to the same "stigma" the
Court was concerned with in Santosky. Id at 18. Thus, while it is not so great as the
fundamental right to care and custody of one's children, the defendant's interest in being
free from the "stigma" of being legally declared an abuser might be enough to trigger the
need for a higher standard of proof on its own.
Id. at 18.
103.
Id.
104.
Id. at 18-19.
105.
Id. at 18.
106.
Id.
107.
114
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 37:103
were "capable of objective measurement and application."' 0 8 By contrast,
many domestic violence cases, including Anibal Crespo's, ultimately
devolve into "he said, she said" swearing contests. 109 Moreover, although
the lower court dismissed Crespo's argument that the very existence of
civil domestic violence proceedings violates due process, it reasoned that
their "quickly calendared and summary nature"I o increased the risk of
erroneous deprivation substantially enough to mandate a higher standard of
proof."l' Consequently, based on the same considerations that led the New
Jersey Supreme Court to allow a lesser standard of proof in Polk, the lower
court ruled that proceedings under PODVA required at least a "clear and
convincing" standard.1 12 The FRO against Anibal Crespo was vacated,
though all of its terms remained in effect as a TRO.1 13
B. CrespoII:114 The Lower Court's Decision is Reversed and
PODVA is Upheld
Mr. Crespo's restraining order was reinstated on appeal,1 15 as the
superior court of New Jersey accused the lower court of "sidestepping [its]
binding precedent" in relying on the fact that no other cases involving
challenges to PODVA had expressly performed a Mathews test.116 The
superior court, nevertheless, attempted to apply that test to the instant
case.1 17 Domestic violence cases often involve "situations where proof is
scarce, parties' contentions are in sharp contrast, and a judge may often be
relegated to deciding the case based solely upon credibility findings."1 18
Citing both Mathews and Polk, the superior court found that because of the
hard-to-determine nature of domestic violence allegations, a lower standard
of proof was justified as the only way for PODVA to achieve its goals, and
argued that this analysis constituted a sufficient application of the Mathews
108.
Id.
109.
Id.
Id. at 19. The PODVA provides for the immediate issue of a TRO upon receipt of
110.
a complaint, and for an FRO hearing to be scheduled within ten days (though a defendant
may appeal for an extension). N.J. STAT. ANN. § 2C:25-29 (West 2008). While this has the
salutary effect of providing victims with quick, effective relief, it may not give defendants
enough time to marshal an adequate defense. See Heleniak, supra note 8, at 1009, 1014.
Crespo I, No. FV-09-2682-04, at 19.
111.
112.
Id. at 19.
Id. at 20.
113.
Crespo v. Crespo (Crespo II), 972 A.2d 1169, 1173 (N.J. Super. Ct. App. Div.
114.
2009).
Id at 1181.
115.
116.
Id. at 1175.
117.
Id.
118. Id.
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
115
balancing test. 119
1. State's interest vs. victim's interest
It appears, however, that in performing this analysis, the superior court
only applied the third prong of Mathews: consideration of the state's
interest. 20 The nature of the defendant's private interest is not mentioned
in the opinion. 12 1 Later in the opinion, the court does mention, somewhat
condescendingly, "defendants' liberty interests in being frcc to say what
they wish and go where they please." 22 Nowhere in its opinion, however,
does the court address or acknowledge the lower court's finding that
rights.12 3
under PODVA implicate "fundamental"
proceedings
Additionally, the way the superior court framed this "balancinf" is
inconsistent with the way the Mathews test is traditionally applied.12 The
superior court argued that domestic violence proceedings pit defendants'
(relatively trivial) interests against "victims' interests in being protected
from domestic violence." 2 5 According to Mathews, however, the interest
of the defendant (or the individual who stands to be deprived of his or her
private interest) is to be weighed against that of the state, not the victim. 126
This might seem like a trivial distinction; after all, in domestic violence
proceedings, the state is meant to be acting on behalf of alleged victims of
domestic violence. The lower court framed the state's interest as that of
protecting domestic violence victims, and acknowledged that it was
"extremely strong."' 2 7 However, by weighing the individual defendant's
interests directly against those of the individual victim, rather than of the
28
state, the superior court departed from Mathews in a significant way.1
The government's interest in providing protection to victims of domestic
violence is a subset of its general interest in protecting the health, safety,
and welfare of its citizens. 12 9 The same interest is theoretically implicated
any time the government prosecutes an individual for any crime. There is
no presumption of wrongdoing on the individual defendant's part; in fact,
Id. at 1175-77.
119.
120.
See id. at 1175-76.
See id.
121.
122.
Id. at 1176.
See Crespo v. Crespo (Crespo 1), No. FV-09-2682-04, 17 (N.J. Super. Ct. Ch. Div.
123.
June 18, 2008).
124.
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
125.
Crespo II, 972 A.2d at 1176.
Mathews, 424 U.S. at 335.
126.
Crespo I, No. FV-09-2682-04, at 18.
127.
128.
See Mathews, 424 U.S. at 335.
See State ex rel. State Bd. of Milk Control v. Newark Milk Co., 179 A. 116, 124
129.
(N.J. 1935).
CRIMNAL AND CIVIL CONFINEMENT
116
[Vol. 37:103
by considering the risk of erroneous deprivation, the Court implicitly
acknowledged the potential for wrongful accusations. 130 By weighing the
accused's interests against those of the (alleged) victim, rather than the
state, the superior court seems to presuppose that the victim's interest in
being protected from domestic violence is actually implicated in any given
proceeding. In other words, it appears to presume the guilt of the accused.
In cases where acts of domestic violence have been committed, it seems
clear that the victims' interest in being free from further violence ought to
outweigh almost any interest of the abuser. But, courts should not presume
the accused has committed acts of domestic violence when determining
what standard of proof to use to decide his or her guilt.
2. The superior court's flawed application of Mathews v.
Eldridge
While the superior court did consider the second prong of the Mathews
test, the risk of erroneous deprivation, it applied this factor in precisely the
opposite way it was applied in Mathews, Polk, and the court in Crespo 1.131
The court cited the scarcity of objective proof and the difficulty of making
determinations based upon anything more than intuitive judgments about
credibility as factors weighing againsta higher standard of proof:
In this regard we continue to recognize the truth of what we said in Roe:
"[t]here are usually few, if any, eyewitnesses to marital discord or
domestic violence." Most of the events complained of in such matters
happen behind closed doors or during private communications; as a
result, most cases turn only on the trial judge's assessment of
the credibility of only two witnesses-the plaintiff and the
defendant . . .. When the testimony of the plaintiff is pitted against the
testimony of the defendant, with no other corroborating testimony or
evidence, a plaintiff would likely have difficulty sustaining the sterner
standard urged by defendant here. 132
It is particularly interesting that the superior court cited Polk as support
for this application of the Mathews test. 3 As the lower court noted, Polk
held that a lower standard of proof was permissible in that case because the
facts at issue did allow for objective determination.1 34 In effect, the
superior court seems to have held that, because the risk of erroneous
deprivation in domestic violence cases is so high, the court ought to employ
130.
131.
132.
133.
134.
June 18,
See Mathews, 424 U.S. at 335.
Crespo I, 972 A.2d at 1173.
Id. at 1176-77 (citations omitted).
Id. at 1174.
Crespo v. Crespo (Crespo 1), No. FV-09-2682-04, at 18 (N.J. Super. Ct. Ch. Div.
2008).
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
117
a lower standard of proof, contrary to the holding in Mathews. 13 5
IV. CRITICISMS OF THE PREVENTION OF DOMESTIC VIOLENCE ACT
Anibal Crespo was not the first to question the constitutionality of the
New Jersey PODVA. One major criticism is that because the acts
constituting "domestic violence" under the statute are also violations of the
criminal law, the statute unjustly uses an equitable proceeding to punish
criminal behavior, thus depriving the accused of the due process rights to
which he or she would otherwise be entitled. 136 It is a well-settled principle
that "[the] Legislature cannot, by a mere change of name or form, convert
what is in its nature a prosecution for a crime into a civil proceeding and
thus deprive parties of their rights to a trial by jury."' 3 In Cesare v.
Cesare, the New Jersey Superior Court recognized the legal peculiarity of
PODVA, which treats a domestic violence complaint signed by an alleged
victim as a civil matter to be adjudicated by the family courts, while an
identical allegation signed by a police officer is treated as a criminal
allegation to be tried in the criminal courts. 138 The court wrote: "While
terroristic threats and harassment are crimes, the thrust of [PODVA] is to
somehow transmogrify those crimes into some lesser offense not a 'crime,'
but nonetheless with potential serious penal consequences, when the victim
signs the complaint."1 39 The Cesare court expressed concern that the result
of this seemingly arbitrary distinction "is to circumvent the protections
normally accorded an accused in a criminal case." 1 40 However, the court
declined to rule upon that issue, finding instead that there was insufficient
evidence of domestic violence to warrant an FRO, even in the absence of
those procedural protections.141
A related concern is that the more punitive provisions of PODVA
present a quasi-criminal punishment to the accused, as well as a substantial
temptation to make false allegations of domestic violence.14 2 Given the
seriousness of these potential consequences, the lack of procedural
protections, such as the right to be represented by counsel or the right to
have one's case heard before a jury, can seem particularly onerous to the
135.
Crespo II, 972 A.2d at 1176-77.
Heleniak, supra note 8, at 1009-10.
136.
137.
Id. at 1009 (citing 21A AM. JuR. 2D CRIMINAL LAw § 1071 (1998)).
Cesare v. Cesare, 694 A.2d 603, 608 (N.J. Super. Ct. App. Div. 1997).
138.
139.
Id.
140.
Id "Arbitrary" in that it has nothing to do with the seriousness of the alleged act
of domestic violence. Id.
141.
Id.
Heleniak, supra note 8, at 1021 (citing Cathy Young, Hitting Below the Belt,
142.
SALON (Oct. 25, 1999), http://www.salon.com/life/feature/1999/10/25/restrainingorders).
118
CRIMTNAL AND CIVIL CONFINEMENT
[Vol. 37:103
defendant.143 Concerns have been raised as to whether ten days is enough
time for defendants to prepare to address the charges against them, or even
to fully grasp the seriousness of the proceedings.'" Without the right to
counsel, defendants who are not financially capable of hiring their own
attorneys will likely have difficulty in successfully advocating for
themselves with such a brief period of time to prepare.
The possibility for procedural unfairness might be mitigated if the judges
responsible for making the ultimate decisions were determined to safeguard
the rights of the accused, as well as protecting those of the alleged victim.
Critics argue, however, this is too often not the case. 145 According to
Elaine Epstein, former president of the Massachusetts Bar Association,
"[t]he facts have become irrelevant ... [e]veryone knows that restraining
orders and orders to vacate are granted to virtually all who apply, lest
anyone be blamed for an unfortunate result."1 46 New Jersey Judge Richard
Russell even instructed a group of municipal judges at a seminar not to
worry about the rights of the accused, only those of the alleged victim. 14 7 it
appears the major reason the accused's rights are diminished, based upon
the repeated statements of municipal court judges, is that no one wants to
risk finding against the alleged victim and then ending up as "tomorrow's
headline[s]" when the abuser strikes again.1 48 A judge has a strong
incentive to favor the alleged victim, critics charge:
If he rules in favor of the defendant, and the defendant then does
something to hurt the plaintiff, the judge might be sharply criticized for
failing to prevent the harm. If he rules against the defendant, and the
defendant is really innocent, so what? . . . There will be no headlines, no
angry activists protesting on the courthouse steps.149
Of course, the obvious answer to that is that there will be no angry
protests because no one will have died. Regardless of how high the stakes
undoubtedly are for the accused facing domestic violence charges, the
victims of genuine abuse have even more at risk. PODVA was passed, after
all, because thousands of New Jersey citizens were being "regularly beaten,
tortured, and in some cases even killed by their spouses or cohabitants." 50
Even in finding PODVA unconstitutional, Justice Schultz noted, "the
143.
Id. at 1009, 1014 (citing Ashley v. Wait, 116 N.E. 961, 966 (Mass. 1977)).
144.
Id.
145.
Elaine M. Epstein, President's Message: Speaking the Unspeakable, MASS. BAR
Ass'N NEWSLETTER 33, June-July 1993, at 1, 9.
146.
Id.
147.
Heleniak, supra note 8, at 1020.
Id. at 1041 (quoting Judicial Training: "Your Job is to be a Wall," N.J. L.J., Apr.
148.
24, 1994, at 14) (intemal quotation marks omitted).
149.
Id.
150.
N.J. STAT. ANN. § 2C:25-18 (West 2008).
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
119
victims of domestic violence would suffer irreparable injury if injunctive
relief were not provided.""' Still, it is clear that the current system is
biased heavily in favor of the alleged victim, which will inevitably lead to
an unfair result for at least some of the accused.
V. IMPLICATIONS
It is easy to understand why many courts, including the New Jersey
Superior Court in Crespo I, are reluctant to increase the state's burden in
domestic violence prosecutions. In cases where the accused is in fact guilty
of domestic violence, the victim's interest in being free from further acts of
violence is unquestionably paramount. However, the due process
protections to which the accused is entitledprior to a determination of guilt
have not yet been adequately addressed.
By considering only the accused's interest in complete freedom of
speech and movement, the superior court correctly held that these interests
do not merit a heightened standard of proof, but did not consider the more
weighty interests noted by the lower court. 152 In addition, the court applied
the Mathews balancing test in a manner inconsistent with the New Jersey
Supreme Court's holding in Polk, and with Mathews itself.15 3 As a result,
the constitutionality of New Jersey's PODVA still remains in doubt.
One solution might be to leave the provision of PODVA that mandates a
preponderance standard in place, but limit the scope of PODVA. As it
currently stands, PODVA provides for family court judges to issue TROs
that, in some cases, severely limit or even deprive the accused of contact
with his or her children, as well as requiring them to make re arations to
their alleged victims and to receive psychiatric evaluations.
Moreover,
within ten days, these requirements may be made permanent with the
issuance of an FRO.155 The New Jersey Legislature might consider limiting
the scope of PODVA in such a way that victims are still able to obtain
initial injunctive relief through the TRO process, and some permanent
relief through the FRO process, so that decisions that stood to permanently
deprive defendants of fundamental rights and interests would be subject to
a higher standard of proof.
The most compelling reason for allowing a lower standard of proof in
domestic violence cases is the immediate danger to victims if they are not
permitted some form of injunctive relief. 156 While opponents of PODVA
151.
June 18,
152.
153.
154.
155.
156.
Crespo v. Crespo (Crespo 1), No. FV-09-2682-04, at 9 (N.J. Super. Ct. Ch. Div.
2008).
See supra Part III.
See supra Part III.
N.J. STAT. ANN. § 2C:25-29.
See id.
Crespo l, No. FV-09-2682-04, at 9.
120
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 37:103
have argued that even the issuance of a TRO unjustly deprives the accused
of his or her right to converse with his or her spouse and to enjoy the
marital home, 157 these arguments are not particularly compelling. An
individual's interest in remaining in contact with a spouse, or former
spouse, who does not wish to remain in contact with him or her is probably
not the sort of strong private interest that would trigger the requirement of a
higher standard of proof under Mathews 158 or Santosky.159 For this reason,
defendants might still be permanently enjoined from contacting their
alleged victims under a preponderance standard without implicating due
process concerns. 160 When the accused stands to be deprived of a weightier
interest, such as the care and custody of his or her children, or when the
alleged victim seeks reparations, the court in Crespo I correctly held that a
higher standard of proof is required.161 In actions to permanently deprive
an individual of custody-as opposed to a temporary emergency as in a
TRO proceeding-or to impose financial reparations, the immediate need
to protect the alleged victim is not as strong. In these cases, courts will
likely be better able to conduct a thorough analysis of the facts without
subjecting victims to further harm. Limiting the scope of PODVA to
emergency relief, as well as permanent enjoinment from contact between
defendant and alleged victim, while still allowing other forms of relief to be
provided subject to heightened evidentiary standards, is the best way to
balance the state's interest in protecting victims with the due process rights
of the accused.
VI. CONCLUSION
The New Jersey courts should reconsider the holding in Crespo II. The
primary reason is not that Anibal Crespo is a particularly sympathetic
defendant, but that the analysis behind the lower court's finding that
PODVA is unconstitutional remains almost entirely unaddressed. In
Addington, the Supreme Court held that an intermediate standard of proof
is required in civil cases where individuals stand to lose more than mere
money.162 Cases brought under PODVA frequently involve the sort of
quasi-criminal penalties Addington spoke of.163 Moreover, cases involving
children implicate the same fundamental rights that required an
157.
See Heleniak, supra note 8, at 1033.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
158.
Santosky v. Kramer, 455 U.S. 745, 745-46 (1982).
159.
Moreover, if both parties were mutually enjoined from making contact with each
160.
other, this might avoid even the Court's concern with "stigma" cited as mandating a higher
standard of proof in Addington v. Texas, 441 U.S. 418, 427 (1979).
Crespo I, No. FV-09-2682-04, at 19.
161.
Addington, 441 U.S. at 431.
162.
Id. at 418.
163.
2011]
DOMESTIC VIOLENCE AND DUE PROCESS
121
intermediate standard of proof in Santosky.164 Since the interests at stake
are so similar, it seems clear that if a Mathews analysis was required in
Santosky1 65 and Addington,166 then Anibal Crespo's case requires one as
well.
At the same time, the state has a fundamentally important interest in
providing adequate protections to victims of domestic violence. The courts
must undertake the difficult task of weighing this interest with the rights
and interests of the accused-not by simply dismissing the latter as the
superior court did in Crespo II. The superior court's failure to apply
Mathews correctly leaves the constitutionality of PODVA-and by
implication similar statutes-in doubt.
In revisiting Crespo II, it may be found that PODVA cannot meet the
due process standards the Constitution requires. In that case, the New
Jersey courts will be faced with an unenviable task. Violence inflicted by
intimate partners is a significant cause of injury and death in the United
States, particularly to women. 167 While the principle that "it is better that
ten guilty per[s]ons e[s]cape, than that one innocent [s]ufffler"l 6 8 is
enshrined in our system of criminal justice, the proposal that it is better to
let ten innocent victims of domestic violence die than to let one innocent
man (or woman) be unjustly deprived of liberty and property interests is
significantly less palatable to contemporary sensibilities. Nevertheless, it is
still of the utmost importance to balance the indisputable need to protect
victims with the procedural and substantive due process rights of the
accused.
164.
165.
166.
Santosky, 455 U.S. at 747.
Id. at 745.
Addington, 441 U.S. at 431.
167.
NAT'L ORG. FOR WOMEN, supra note 6.
168.
4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 352 (photo
reprint, Univ. of Chi. Press 1979) (1769).