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.1 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 governments 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,

U.S. CONST. amend. XIV, 1. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 545 (3d ed. 2006). 3. Id. 4. Id. at 546. 5. Id. 6. NATL ORG. FOR WOMEN, Violence Against Women in the United States: Statistics,

1. 2.

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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,8 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).10 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.11 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;15 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 I), 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). 9. Santosky v. Kramer, 455 U.S. 745, 747-48 (1982). 10. Prevention of Domestic Violence Act, N.J. STAT. ANN. 2C:25-17 (West 2008). 11. 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 ONLINE, http://www.judiciary.state.nj.us/family/ fam-06.htm (last visited Oct. 19, 2010).

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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.17 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,20 with the court holding that New Jerseys PODVA was unconstitutional under the Due Process Clause of the Fourteenth Amendment.21 Specifically, the court found that the preponderance of the evidence standard of proof mandated by the PODVA was insufficient as first articulated by the United States Supreme Court in Mathews v. Eldridge.22 However, this holding was subsequently overturned on appeal, and the FRO was reinstated.23 This Comment will argue that in overturning the lower courts 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.24 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.25 Conceding that the governments 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.26 Furthermore, the risk of erroneous deprivation is particularly high in domestic violence cases, mandating a heightened standard of proof.27

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 I), No. FV-09-2682-04, 17-18 (N.J. Super. Ct. June 18, 2008). 20. Id. at 20. 21. Id. at 19. 22. Id. 23. Crespo v. Crespo (Crespo II), 972 A.2d 1169, 1181 (N.J. Super. Ct. App. Div. 2009). 24. Crespo I, No. FV-09-2682-04, at 17. 25. Id. 26. Id. at 18. 27. Id.

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This Comment will consider the constitutional context in which Crespo v. Crespo (Crespo I)28 was decided; the development of the Mathews29 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 II),30 and will examine why the constitutional arguments raised in the lower courts decision remain unresolved. Part IV will look at major criticisms of PODVA and similar statutes. Part V will discuss the implications of the courts 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.31 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 Governments 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 states 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.

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individuals private interest, and the more important that of the state, the greater the risk of wrongful deprivation the state is allowed to tolerate.35 Disability benefits are distinguishable from welfare benefits, the Court reasoned, because they are not given on the basis of financial need.36 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 states 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.41 As the right to custody [of ones 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].42 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.43 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

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. Id. Santosky v. Kramer, 455 U.S. 745, 747 (1982) (quoting N.Y. SOC. SERV. LAW 384-b.4(d), -b.7(a) (McKinney 2010)) (internal quotation marks omitted). 44. Id.

35. 36. 37. 38. 39. 40. 41. 42. 43.

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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 Courts historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.46 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 examiners 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.51 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 judges instruction in Addington to be constitutionally adequate it nevertheless remanded the case to determine what standard of proof due process required.53 The Courts 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.

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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.58 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 Addingtons contention that civil commitment proceedings ought to use the beyond a reasonable doubt standard.60 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.61 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 doctors challenge to the revocation of his license to practice medicine after he was found to have made inappropriate

55. 56. 57. 58. 59. 60. 61. 62.

Id. 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.

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sexual advances towards his patients.63 The states 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 personal welfare.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.71 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 courts 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). Id. at 11-12. Id. at 12. Id. at 11. Id. at 13, 22. Id. (emphasis added). Id. at 16. Id. Id. at 15. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Crespo v. Crespo (Crespo I), No. FV-09-2682-04, 16-20 (N.J. Super. Ct. Ch. Div. June 18, 2008).
63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73.

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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 governments action may erroneously tarnish an individuals 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.78 The two continued to reside together even after their divorce: Vivian Crespo on the first floor with the couples children and Anibal Crespo on the second floor with his parents.79 On March 16, 2004, the two argued over child support money.80 During that argument, Ms. Crespo alleged that her former husband smacked her in the face . . . and pulled on her arms, causing bruising.81 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.85

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.

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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;87 violated his First Amendment right to speak freely with his ex-wife and children;88 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 Crespos argument that PODVA unjustly treats criminal matters as civil disputes.91 Noting the concern that the due process protections given to a defendant depend on who signs the complaint,92 the Crespo court nevertheless held that PODVA is intended to be remedial, not punitive, meaning that it in fact is not punitive.93 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 criminal trial.94 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,96 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.97 Applying this analysis for the first time, the court in Crespo I held that PODVA failed the

Id. at 4, 11-12. Id. at 11. Because a finding of domestic violence can result in a loss of the right to possess firearms, Crespo argued that it violated the Second Amendment. Id. The state of New Jersey, however, does not recognize an individuals 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. 95. Id. at 19. The lower court also found PODVA unconstitutional in that its 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 courts ruling. 96. Id. at 16. 97. Id. at 17.

86. 87.

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Mathews balancing test, finding it unconstitutional.98 The first prong of the Mathews test weighs the nature of the private interest at stake.99 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.100 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,101 FRO proceedings require the same minimal standard of proof the Supreme Court mandated in Santosky.102 The lower court dealt briefly with the second prong of Mathews, acknowledging that the states interest in protecting the victims of domestic violence was extremely strong, but could be no greater than [the states] interest in protecting children from abuse and neglect.103 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.107 This was particularly true because those substantive issues

Id. at 18-19. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Santosky v. Kramer, 455 U.S. 745, 746 (1982). Crespo I, No. FV-09-2682-04, at 17. Id. at 17-18. This raises the question of how to analyze civil domestic violence 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 individuals 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 ones children, the defendants 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. 103. Id. at 18. 104. Id. 105. Id. at 18-19. 106. Id. at 18. 107. Id.

98. 99. 100. 101. 102.

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were capable of objective measurement and application.108 By contrast, many domestic violence cases, including Anibal Crespos, ultimately devolve into he said, she said swearing contests.109 Moreover, although the lower court dismissed Crespos argument that the very existence of civil domestic violence proceedings violates due process, it reasoned that their quickly calendared and summary nature110 increased the risk of erroneous deprivation substantially enough to mandate a higher standard of proof.111 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.112 The FRO against Anibal Crespo was vacated, though all of its terms remained in effect as a TRO.113 B. Crespo II:114 The Lower Courts Decision is Reversed and PODVA is Upheld Mr. Crespos restraining order was reinstated on appeal,115 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.117 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.118 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

Id. Id. Id. at 19. The PODVA provides for the immediate issue of a TRO upon receipt of 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. 111. Crespo I, No. FV-09-2682-04, at 19. 112. Id. at 19. 113. Id. at 20. 114. Crespo v. Crespo (Crespo II), 972 A.2d 1169, 1173 (N.J. Super. Ct. App. Div. 2009). 115. Id. at 1181. 116. Id. at 1175. 117. Id. 118. Id.

108. 109. 110.

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balancing test.119 1. States interest vs. victims interest It appears, however, that in performing this analysis, the superior court only applied the third prong of Mathews: consideration of the states interest.120 The nature of the defendants private interest is not mentioned in the opinion.121 Later in the opinion, the court does mention, somewhat condescendingly, defendants liberty interests in being free to say what they wish and go where they please.122 Nowhere in its opinion, however, does the court address or acknowledge the lower courts finding that proceedings under PODVA implicate fundamental rights.123 Additionally, the way the superior court framed this balancing is inconsistent with the way the Mathews test is traditionally applied.124 The superior court argued that domestic violence proceedings pit defendants (relatively trivial) interests against victims interests in being protected from domestic violence.125 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 states interest as that of protecting domestic violence victims, and acknowledged that it was extremely strong.127 However, by weighing the individual defendants interests directly against those of the individual victim, rather than of the state, the superior court departed from Mathews in a significant way.128 The governments 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.129 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 defendants part; in fact,

Id. at 1175-77. See id. at 1175-76. See id. Id. at 1176. See Crespo v. Crespo (Crespo I), No. FV-09-2682-04, 17 (N.J. Super. Ct. Ch. Div. June 18, 2008). 124. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 125. Crespo II, 972 A.2d at 1176. 126. Mathews, 424 U.S. at 335. 127. Crespo I, No. FV-09-2682-04, at 18. 128. See Mathews, 424 U.S. at 335. 129. See State ex rel. State Bd. of Milk Control v. Newark Milk Co., 179 A. 116, 124 (N.J. 1935).

119. 120. 121. 122. 123.

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by considering the risk of erroneous deprivation, the Court implicitly acknowledged the potential for wrongful accusations.130 By weighing the accuseds interests against those of the (alleged) victim, rather than the state, the superior court seems to presuppose that the victims 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 courts 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 I.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 against a 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 judges assessment of the credibility of only two witnessesthe 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.133 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.134 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

See Mathews, 424 U.S. at 335. Crespo II, 972 A.2d at 1173. Id. at 1176-77 (citations omitted). Id. at 1174. Crespo v. Crespo (Crespo I), No. FV-09-2682-04, at 18 (N.J. Super. Ct. Ch. Div. June 18, 2008).

130. 131. 132. 133. 134.

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a lower standard of proof, contrary to the holding in Mathews.135 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.137 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.139 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.140 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.142 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 ones case heard before a jury, can seem particularly onerous to the

Crespo II, 972 A.2d at 1176-77. Heleniak, supra note 8, at 1009-10. 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). Id. Id. Arbitrary in that it has nothing to do with the seriousness of the alleged act of domestic violence. Id. 141. Id. 142. Heleniak, supra note 8, at 1021 (citing Cathy Young, Hitting Below the Belt, SALON (Oct. 25, 1999), http://www.salon.com/life/feature/1999/10/25/restraining_orders).

135. 136. 137. 138. 139. 140.

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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.144 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.146 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.147 It appears the major reason the accuseds 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 tomorrows headline[s] when the abuser strikes again.148 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.150 Even in finding PODVA unconstitutional, Justice Schultz noted, the
Id. at 1009, 1014 (citing Ashley v. Wait, 116 N.E. 961, 966 (Mass. 1977)). Id. Elaine M. Epstein, Presidents Message: Speaking the Unspeakable, MASS. BAR ASSN NEWSLETTER 33, June-July 1993, at 1, 9. 146. Id. 147. Heleniak, supra note 8, at 1020. 148. Id. at 1041 (quoting Judicial Training: Your Job is to be a Wall, N.J. L.J., Apr. 24, 1994, at 14) (internal quotation marks omitted). 149. Id. 150. N.J. STAT. ANN. 2C:25-18 (West 2008).
143. 144. 145.

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victims of domestic violence would suffer irreparable injury if injunctive relief were not provided.151 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 states burden in domestic violence prosecutions. In cases where the accused is in fact guilty of domestic violence, the victims interest in being free from further acts of violence is unquestionably paramount. However, the due process protections to which the accused is entitled prior to a determination of guilt have not yet been adequately addressed. By considering only the accuseds 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 Courts holding in Polk, and with Mathews itself.153 As a result, the constitutionality of New Jerseys 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 reparations to their alleged victims and to receive psychiatric evaluations.154 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. Crespo v. Crespo (Crespo I), No. FV-09-2682-04, at 9 (N.J. Super. Ct. Ch. Div. June 18, 2008). 152. See supra Part III. 153. See supra Part III. 154. N.J. STAT. ANN. 2C:25-29. 155. See id. 156. Crespo I, No. FV-09-2682-04, at 9.

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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 individuals 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 Mathews158 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 custodyas opposed to a temporary emergency as in a TRO proceedingor 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 states 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 courts 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

See Heleniak, supra note 8, at 1033. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Santosky v. Kramer, 455 U.S. 745, 745-46 (1982). Moreover, if both parties were mutually enjoined from making contact with each other, this might avoid even the Courts concern with stigma cited as mandating a higher standard of proof in Addington v. Texas, 441 U.S. 418, 427 (1979). 161. Crespo I, No. FV-09-2682-04, at 19. 162. Addington, 441 U.S. at 431. 163. Id. at 418.

157. 158. 159. 160.

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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 Santosky165 and Addington,166 then Anibal Crespos 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 accusednot by simply dismissing the latter as the superior court did in Crespo II. The superior courts failure to apply Mathews correctly leaves the constitutionality of PODVAand by implication similar statutesin 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]u[ff]er168 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.

Santosky, 455 U.S. at 747. Id. at 745. Addington, 441 U.S. at 431. NATL ORG. FOR WOMEN, supra note 6. 4 WILLIAM BLACKSTONE, COMMENTARIES ON reprint, Univ. of Chi. Press 1979) (1769).

164. 165. 166. 167. 168.

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