“HAPPY VALENTINES DAY!”: IS THIS A CRIME?

Valentines Day. A day that couples celebrate their love. Sending flowers with a card to one’s significant other is a common way of expressing that love. And to not be disappointed, people are encouraged to order their flowers as soon as possible to assure delivery by Valentine’s Day. One does so. But after the order is placed, the lovers become fighters and someone obtains a Domestic Violence Restraining Order against the other. In the meantime, the flower and card get delivered and the sender gets arrested and charged with criminal contempt. Was this a crime? That was the situation presented in the case of State v. J.T., 470 N.J. Super 106(Ch. Div. 2020) which was recently approved for publication.

In this case, the defendant had been charged with a contempt of a domestic violence TRO. The issues addressed by the Court was whether the defendant could be found to have “purposely or knowingly” violated the TRO by having initiated communication to a protected party prior to the entry and service if the TRO, and secondarily, whether a defendant was subject to a TRO has an affirmative obligation to attempt to recall or withdraw such communication. The Court found the answer to both questions to be negative and accordingly, dismissed the Contempt Complaint against the defendant.
In this matter, the parties had been in a dating relationship. The plaintiff had obtained a TRO against the defendant on January 31, 2020, which the defendant acknowledged had been served upon him on that date. However, one (1) week prior to the entry of the TRO, the defendant had ordered a floral arrangement for the plaintiff which was scheduled to be delivered to the plaintiff along with a card the day before Valentine’s Day, February 13, 2020. Although he had been served with a TRO which prohibited him from having any contact or communication with the plaintiff, the defendant did not stop, or take any action to stop, the floral delivery from occurring, nor did he inquire as to whether such delivery could be stopped. The flowers and card were in fact delivered to the plaintiff on February 13th resulting in the contempt charges being brought against the defendant.
The State argued that the defendant had both the opportunity and the obligation to cancel the delivery after being served with the TRO. The defendant argued that the TRO did not notify him of any such obligation. The Court noted that under N.J.S.A. 2C:29-9 b(2), in the context of the contempt charge being brought, the prosecution had to establish that the defendant “purposely or knowingly” violated the TRO. In this instance, the Court found that the facts did not support a finding that the defendant purposely or knowingly violated the TRO. To the contrary, when the defendant initially ordered the flowers, the TRO did not yet exist, and as a consequence, the defendant could not have sent the flowers while having the conscious object of violating the TRO nor with an awareness that his actions would violate the Court’s Order. In regard to the State’s argument that the defendant should have been imputed with responsibility for canceling the floral order upon receiving service of the TRO, the Court noted that since the TRO did not notify the defendant that he was obligated to attempt to recall any communications to the protected party he may have initiated prior to the service of the TRO, the addition of such requirement after the fact would be an improper basis for conviction.
What does this case tell us? If you are a victim of domestic violence or represent someone who is, consider requesting the Court include in any TRO or Final Restraining Order a requirement that the defendant recall or withdraw any deferred communications, or at least attempt to do so. Obviously, if someone had put a card in the mail before a restraining order was entered, that would not be possible. However, this would place a defendant on notice to rescind those communications or deliveries over which a sender had the ability to control as well as to suspend any automated electronic or social media messages from being sent. If you are a Defendant to a domestic violence matter or, represent someone who is, don’t assume that you will be as fortunate as the Defendant, J.T., in this case. Determine whether there are any outstanding deliveries or communications directed to the Plaintiff and make every effort to recall them. The same is true for any automated or recurring electronic communications or messages, or if the Plaintiff is part of an email, text or social media chain. Make every effort to remove them. In light of this decision, Courts may be more cognizant to restrain such deferred communications. In these instances, the Defendants’ failure to address them may be deemed a purposeful or knowing violation. Don’t let your Valentine’s wishes end in jail time. Better to be safe than sorry.