DV -- Harassment

1. Law Lessons from Ramos v. Ceaser (App. Div.; Docket No. A-0863-04T2; Decided September 20, 2005; Not approved for publication):
   
   In relevant part, N.J.S.A. 2C:33-4(a) defines the petty disorderly offense of harassment as making "a communication . . . in offensively coarse language, or any other manner likely to cause annoyance or alarm" if the communication was made "with purpose to harass another . . . ." An essential element of harassment is that there be a purpose to harass in making the offensive communication. State v. Hoffman, 149 N.J. 564, 576 (1997). Absent proof of such purpose, a communication that might otherwise be characterized as offensive, coarse, or annoying does not constitute harassment. D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994).
   
   Not every annoying and offensive communication can constitute an act of domestic violence. People in a family or a family-like relationship inevitably quarrel and say annoying, upsetting, or offensive things to each other. That is a fact of life, and the Legislature obviously did not intend to subject every harsh, unwanted, vulgar, profane, or nasty word to the remedial scope of the Domestic Violence Act. Domestic violence is not a trivial matter, and the fulfillment of the Act's objectives demands that it not be trivialized. See, e.g., J.F. v. B.K., 308 N.J. Super. 387, 391 (App. Div. 1998); J.N.S. v. D.B.S., 302 N.J. Super. 525, 527 (App. Div. 1997). See also L.D. v. W.D., 327 N.J. Super. 1 (App. Div. 1999). The critical issue is one of context, that is, whether defendant acted with a purpose to harass, and whether plaintiff reasonably believed that her health, safety, and well-being were at risk as a result of the offensive communications.
   
   For a finding of domestic violence, the record must support a determination by a preponderance of the evidence that defendant's purpose was to harass. Although the tone of defendant's conversations may upset plaintiff emotionally, that alone does not justify an inference of a purpose to harass, and, therefore, such communications do not constitute domestic violence. See E.K. v. G.K., 241 N.J. Super. 567, 570-71 (App. Div. 1990).
   
   Where the parties' course of activity was merely one of mutual annoyance, such activity is not domestic violence. See State v. L.C., 283 N.J. Super. 441, 450-51 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996); Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).



2. The New Jersey Lawyer (a weekly newspaper published by the New Jersey State Bar Association) reported that the Appellate Division decided (but has NOT published its decision) the case of Rider v. Byrnes (Docket No. A-405-04T2, August 24, 2005). The New Jersey Lawyer reported that:
   

   "Final domestic violence restraining order against the defendant ex-boyfriend reversed and remanded for vacation of the FRO; the plaintiff ex-girlfriend asserted that the ex-boyfriend had posted harassing material on his Web site, and the defendant claimed that the allegedly harassing statements were lyrics to a song that his band wrote, were not directed to a specific person, and were not communicated to the ex-girlfriend; the trial court erred by determining that the ex-boyfriend had committed an act of harassment because there was no evidence that he had communicated the statements to the ex-girlfriend; the ex-boyfriend’s posting of material that may have referred to the ex-girlfriend on his Web site by itself did not provide a legal basis for the entry of the FRO."
   
   The 6 page decision is available from Facts-on-Call Order No. 18423.




3. Law Lessons from Rowbotham v. Lindemann (App. Div., Docket No. A-710-04T1, November 9, 2005, not approved for publication):
   
   A person is guilty of harassment if "with the purpose to harass another, he ... [e]ngages in any ... course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." N.J.S.A. 2C:33- 4(c).
   
   "Serious annoyance" is interpreted to mean "to weary, worry, trouble, or offend." State v. Hoffman, 149 N.J. 564, 581 (1997).



4. Law Lessons from Neal v. Neal (App. Div., A-1161-04T1, November 23, 2005, not approved for publication):
   
   In order to prove the offense of harassment there must be sufficient evidence to support a finding of a "purpose to harass." E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990).
   
   Domestic violence restraining orders have serious consequences to a defendant, and therefore should not be entered without an adequate factual basis. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 41 (App. Div. 2001).



5. Law Lessons from STRAHAN v. STRAHAN (APP. DIV., DOCKET NO. A-4432-04T4, NOT FOR PUBLICATION, Decided February 10, 2006):
   
   A distinct and necessary element for actions constituting harassment under N.J.S.A. 2C:33-4 is a purpose to harass.
   
   To obtain a final restraining order, it is incumbent upon plaintiff to establish by a preponderance of the credible evidence that defendant had a purpose to harass. N.J.S.A. 2C:25-29(a); accord Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005).
   
   A purpose to harass may sometimes be inferred from the totality of the circumstances. "Common sense and experience may inform that determination." State v. Hoffman, 149 N.J. 564, 577 (1997).



6. M.J. v. G.D., App. Div. DOCKET NO. A-5628-04T3, NOT FOR PUBLICATION, Decided February 15, 2006: In pertinent part, the harassment statute provides that a person commits a petty disorderly persons offense if, with purpose to harass another, he:
   a. Makes . . . a communication or communications . . . in offensively coarse language, or in any other manner likely to cause annoyance or alarm[.]
   [N.J.S.A. 2C:33-4.]
   
   If defendant had communicated in a manner likely to cause annoyance, it matters not that plaintiff was never alarmed by Defendant's conduct. However, Defendant must have had the requisite "purpose . . . to harass."



7. Law Lessons from: BODNAR v. SPERENDI (App. Div., A-2833-04T1, February 22, 2006, not approved for publication):
   
   Unwanted communications implicate N.J.S.A. 2C:33-4a and -4c. Subsection a of this statute generally targets a single communication, whereas subsection c addresses a course or pattern of conduct.
   
   A trial judge is allowed to infer a purpose to harass from defendant's conduct. State v. Hoffman, 149 N.J. 564, 577 (1997). Accord State v. McDougald, 120 N.J. 523, 566-67 (1990).
   
   In State v. Hoffman, 149 N.J. 564 (1997), the Court sought to elucidate the conduct encompassed by subsection a of the harassment statute, N.J.S.A. 2C:33-4. In so doing, the Court distinguished the conduct sought to be regulated by subsection c. The Court observed that subsection a generally focuses on a single comment, whereas subsection c is directed to a course of conduct. Id. at 580. Furthermore, the annoyance or alarm caused by a single comment need not be serious, whereas the annoyance caused by a course of conduct must be serious. Id. at 580-81.



8. Law Lessons from: HOWARD v. HOWARD (App. Div., A-4593-04T3, March 1, 2006, not approved for publication): One violates the harassment statute, N.J.S.A. 2C:33-4c, when "a person[,] . . . with purpose to harass another, . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Integral to finding harassment constituting domestic violence is a "purpose to harass" by a "'course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente, 281 N.J. Super. at 249 (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)). In determining whether a party's actions constitute domestic violence, the statute requires that a trial judge's consideration include factors such as any previous history of domestic violence between the parties, including any threats, harassment, and physical abuse, and the existence of any immediate danger to person or property. N.J.S.A. 2C:25-29a(1) and (2). However, "a court is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation." Cesare, 154 N.J. at 402.



9. Law Lessons from: BREWER v. PACCIONE (App. Div., A-5942-04T1, March 30, 2006, not approved for publication):
   
   N.J.S.A. 2C:33-4a provides that a person commits the petty disorderly persons offense of harassment if, with purpose to harass another, he makes a communication at extremely inconvenient hours OR in any other manner likely to cause annoyance or alarm.
   
   "Communication" is defined in the Criminal Code as "any form of communication made by any means, including, but not limited to, any verbal or written communication, communications conveyed by any electronic communication device . . . or any other means of transmitting voice or data and communications made by sign or gesture." N.J.S.A. 2C:1-14q.
   
   A specific finding that defendant acted with a purpose or intent to harass plaintiff is integral to a determination of harassment. Peterson v. Peterson, 374 N.J. Super. 116, 123 (App. Div. 2005); Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004).



10. Law Lessons from DEEVY v. GIANNOTTI ( Appellate Division, A-113-05T3, June 12, 2006, not approved for publication): To warrant the issuance of a domestic violence restraining order based on a violation of N.J.S.A. 2C:33-4c, a plaintiff must establish a:
    purpose to harass, D.C. v. T.H., 269 N.J. Super. 458, 461-62 (App. Div. 1994); E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990), along with a course of alarming conduct or repeated acts intended to alarm or seriously annoy another, Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988).
    [Peranio v. Peranio, 280 N.J. Super. 47, 55 (App. Div. 1995).]



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