                          RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION


                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0139-18T4

C.R.,
                                          APPROVED FOR PUBLICATION
        Plaintiff-Respondent,
                                                November 13, 2019
v.                                           APPELLATE DIVISION

M.T.,

     Defendant-Appellant.
____________________________

              Argued October 3, 2019 – Decided November 13, 2019

              Before Judges Fisher, Gilson and Rose.

              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Gloucester County,
              Docket No. FV-08-0021-19.

              Nancy Kennedy Brent argued the cause for appellant
              (Kennedy Brent Law Firm, attorneys; Nancy Kennedy
              Brent, on the briefs).

              Andrew Vazquez argued the cause for respondent
              (South Jersey Legal Services, attorneys; Andrew
              Vazquez and Kenneth Mark Goldman, on the brief).

        The opinion of the court was delivered by

FISHER, P.J.A.D.
      Plaintiff C.R. commenced this action under the Sexual Assault Survivor

Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21, seeking to restrain defendant

M.T. from having any communications or contact with her. SASPA offers an

avenue for the issuance of restraining orders in favor of sexual abuse victims

who cannot obtain relief under the Prevention of Domestic Violence Act,

N.J.S.A. 2C:25-17 to -35. See R.L.U. v. J.P., 457 N.J. Super. 129, 135 (App.

Div. 2018). Testimony adduced at a one-day trial revealed the parties did not

dispute that sexual contact occurred. Whether plaintiff consented – or was able

to consent – to the sexual encounter was and remains the central issue.

      The first prong of SASPA requires that the alleged victim demonstrate –

by a preponderance of the evidence, N.J.S.A. 2C:14-16(a) – that a sexual

encounter was nonconsensual. Lack of consent may be demonstrated by proof

of a temporary mental incapacity, N.J.S.A. 2C:14-2(a)(7), which may be

generated by the victim's intoxication, N.J.S.A. 2C:14-1(i). The trial judge

found plaintiff was so intoxicated that she was unable to consent or object.

Having carefully considered the issues raised in this appeal, we conclude that:

               • SASPA draws no distinction between voluntary
                 and involuntary intoxication when determining
                 whether an alleged victim lacked the capacity to
                 consent.



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               • to prove a lack of consent due to intoxication, an
                 alleged victim must prove a "prostration" of
                 "faculties."

               • a remand is necessary here because the judge did
                 not apply the prostration of faculties standard
                 when finding plaintiff was incapable of
                 consenting.

Because it is necessary to remand for further findings on the first prong, we

choose not to reach defendant's argument about SASPA's second prong, which

permits issuance of a restraining order because of "the possibility of future risk

to the safety or well-being of the alleged victim." N.J.S.A. 2C:14-16(a)(2).

      SASPA's first prong requires that an alleged victim prove, by a

preponderance of the evidence, "the occurrence of one or more acts of

nonconsensual sexual contact, sexual penetration, or lewdness, or any attempt

at such conduct." N.J.S.A. 2C:14-16(a)(1). We start by observing that plaintiff's

claim and defendant's response do not focus on whether sexual contact or sexual

penetration did or did not occur. The ultimate fact in dispute concerned whether

plaintiff consented to the sexual relations that occurred. This dispute posed

separate factual questions: did plaintiff actually express or otherwise convey

her consent to engage in sexual relations and, if not, was she intoxicated to a

point where she was incapable of consenting.



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      In reviewing the evidence and the trial judge's findings, we note that

certain facts were undisputed. On the evening in question, plaintiff and a friend,

S.S. (Sylvia, a fictitious name), consumed alcohol while visiting two bars and a

friend's house. At the first stop, a bartender eventually refused to serve Sylvia,

so the two young women were driven by a friend to another bar. They also

called defendant – Sylvia's cousin – who worked at this last bar; they asked that

he join them. Defendant declined. The women then continued to drink at the

bar until Sylvia was "cut-off." The bartender texted defendant to come and pick

up his cousin and plaintiff. Defendant, who lived nearby, soon arrived and told

Sylvia and plaintiff they were leaving. When plaintiff protested – because she

had not finished her drink – defendant told her to "chug it"; she complied and

the three left.

      Rather than take the women to Sylvia's residence as they requested,

defendant took them to his home. There, defendant went to bed but later joined

the young women in their continued drinking. Eventually, defendant convinced

Sylvia to go to bed in the guest room, and plaintiff laid down on a couch in

another room. It is here the parties' stories diverged.

      Defendant claimed plaintiff led him into the garage; plaintiff claimed he

carried her there.   Plaintiff testified that defendant made sexual demands;


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                                        4
plaintiff asserted, in the judge's words, that "she was scared [because] defendant

is physically imposing," and she "believed she had no alternative but to comply,

so she did." 1 Plaintiff also testified that prior to sexual penetration, she said, as

the judge recounted, "words to the effect of 'I do not want this'"; in the jud ge's

words, if plaintiff's version were to be credited, plaintiff then "revoked whatever

consent there could have been" but "defendant did not stop."

      Defendant countered plaintiff's claim that she did not consent or was

otherwise unwilling. He testified he had gone to bed but was interrupted when

plaintiff asked for a blanket. He followed her to the couch where plaintiff was

planning on sleeping, and they began to "fool around." Defendant testified that,

after a while, plaintiff suggested they go to the garage to avoid the possibility of

Sylvia walking in on them. Defendant then described in his testimony that they

engaged in consensual sexual relations in the garage.

      If, by a preponderance of the evidence, the judge found plaintiff either

verbally or impliedly consented only because she was in fear, or initially

consented but then withdrew her consent, the predicate act necessary to establish

SASPA's first prong would have been proven. Permission to engage in sexual



1
  The judge observed in his findings that "defendant is a physically large and
seemingly powerful young man and that the plaintiff is slight of build."
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                                          5
relations must be freely given and that willingness may be inferred from acts or

statements reasonably viewed in light of the circumstances. In re M.T.S., 129

N.J. 422, 444 (1992). Plaintiff's version included her claim she only assented

out of fear or in the face of a compelling force, 2 and that, at some point in the

encounter, she expressed her desire that defendant stop.           This would be

sufficient under SASPA's first prong. But the judge found the parties' competing

versions to be "equally plausible"; in short, he found plaintiff failed to prove her

version was more likely true than defendant's. Globe Motor Co. v. Igdalev, 225

N.J. 469, 482 (2016). The trial judge's view of the weight of the evidence

commands our deference. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.

474, 483-84 (1974).

      Because the judge concluded plaintiff failed to tip the evidential scale in

her favor that she refused to engage in sexual conduct, that she consented out of

fear, or that she revoked consent during the encounter, the remaining factual

dispute about consent turned on whether there was a ground upon which it could

be found plaintiff was incapable of consenting.



2
  It has long been acknowledged that the concept that a victim must resist – and
"to the uttermost" – is obsolete; a victim who submits "to a compelling force, or
as a result of being put in fear" has not consented. State v. Harris, 70 N.J. Super.
9, 16-17 (App. Div. 1961).
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                                         6
      In ascertaining what the Legislature meant when requiring that alleged

victims prove the first prong – an act of "nonconsensual" sexual contact or

penetration, N.J.S.A. 2C:14-16(a)(1) – we look to N.J.S.A. 2C:14-2(a)(7), which

defines a sexual assault victim as "one whom the actor knew or should have

known was" among other things "mentally incapacitated." The phrase "mentally

incapacitated" is defined as

            that condition in which a person is rendered temporarily
            incapable of understanding or controlling his conduct
            due to the influence of a narcotic, anesthetic, intoxicant,
            or other substance administered to that person without
            his prior knowledge or consent . . . .

            [N.J.S.A. 2C:14-1(i) (emphasis added).]

This definition of "mentally incapacitated" – when considered in its context –

gives some pause because that portion of N.J.S.A. 2C:14-1(i) we underscored

above might suggest a requirement that the alleged victim prove her involuntary

intoxication, that is, that she ingested intoxicants "administered to [her] without

[her] prior knowledge or consent." Since the evidence demonstrated only that

plaintiff voluntarily drank on the evening in question, we must determine

whether the underscored phrase modifies "intoxicant."

      In answering any question about a statute's intent, we look for the plain

meaning of the words and phrases the Legislature utilized. State v. Olivero, 221


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                                        7
N.J. 632, 639 (2015); McCann v. Clerk of City of Jersey City, 167 N.J. 311, 320

(2001).3 Because the Legislature listed the substances – "narcotic, anesthetic,

intoxicant, or other substance" – that could generate mental incapacity and

followed that list with a qualifying phrase – "administered to that person without

his prior knowledge or consent" – we necessarily engage the doctrine of the last

antecedent, which holds that, absent an apparent contrary intention, "a

qualifying phrase within a statute refers to the last antecedent phrase." State v.

Gelman, 195 N.J. 475, 484 (2008) (citing 2A Sutherland Statutory Construction

§ 47.33, at 487-88 (7th ed. 2007)). This doctrine requires our conclusion that

the qualifying phrase applies only to "other substance" and not "intoxicant." To

convey some other meaning, the Legislature would have had to insert a comma

after "other substance," a mere punctuation mark to be sure, but one that would

grammatically call for a different result.

      Our emphasis on the absent comma may sound like a hyper-technical way

to construe statutes. It isn't. Our courts have applied this tenet time and again

in construing legislation. See New Jersey Bank v. Palladino, 77 N.J. 33, 45

(1978) (holding, in a similar circumstance, that if "the Legislature had intended



3
  We would add there is nothing in the statute's legislative history to illumina te
the Legislature's intent on this precise point.
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                                         8
otherwise, it would have inserted a comma after" the last prior antecedent);

Morella v. Grand Union/New Jersey Self-Insurers Guar. Ass'n, 391 N.J. Super.

231, 240-41 (App. Div. 2007) (holding that "the use of a 'comma' to separate a

modifier from an antecedent phrase indicates an intent to apply the modifier to

all previous antecedent phrases"); Gudgeon v. Cty. of Ocean, 135 N.J. Super.

13, 17 (App. Div. 1975) (holding that "[w]here a comma is used to set a

modifying phrase off from previous phrases, the modifying phrase applies to all

the previous phrases, not just the immediately preceding phrase"); N.J. Ins.

Underwriting Ass'n v. Clifford, 112 N.J. Super. 195, 204 (App. Div. 1970)

(holding that "[h]ad the modifying phrase been intended to relate to more than

its last antecedent, a comma could have been used to set off the modifier fro m

the entire series"). The Legislature undoubtedly acted on the assumption that

we would derive the intended meaning of the statute through application of this

established doctrine. See, e.g., State v. Chapland, 187 N.J. 275, 291 (2006). So,

we may confidently conclude the Legislature's omission of a comma after "other

substance" was intended to invoke the doctrine of the last antecedent in the

construction of N.J.S.A. 2C:14-1(i), thereby conveying the Legislature's intent




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                                       9
that the last phrase would qualify only "other substance." 4 We thus hold that, in

seeking relief under SASPA, an alleged victim may prove the lack of consent by

proving a mental incapacity brought on by either voluntary or involuntary

intoxication.5

      Having determined that the victim's intoxication – even when produced

voluntarily – may support a finding that the victim could not consent, we

consider the level of intoxication required to support such a finding. 6 It is


4
  To be sure, the Legislature could have made this point more clearly if it had
defined mental incapacity as "that condition in which a person is rendered
temporarily incapable of understanding or controlling his or her conduct due to
the influence of: (i) a narcotic; (ii) an anesthetic; (iii) an intoxicant; or (iv) some
other substance administered to that person without his or her prior knowledge
or consent."
5
   It is not unthinkable that a legislature might draw a distinction between
voluntary and involuntary intoxication in this setting. In fact, legislatures of at
least two states, Arkansas and Hawaii, appear to have drawn such a line. See
A.C.A. § 5-14-101(5) (defining "mentally incapacitated" as rendering a person
"temporarily incapable of appreciating or controlling the person's conduct as a
result of the influence of a controlled or intoxicating substance: (A)
[a]dministered to the person without the person's consent; or (B) [t]hat renders
the person unaware a sexual act is occurring"); Haw. Rev. Stat. § 707-700
(defining "mentally incapacitated" as referring to a person "rendered temporarily
incapable of appraising or controlling the person's conduct as a result of the
influence of a substance administered to the person without the person's
consent").
6
  While the Legislature drew a precise line when declaring the blood alcohol
content that renders unlawful an individual's operation of a motor vehicle,
N.J.S.A. 39:4-50, that cannot be the same line for determining when an
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                                         10
probably best to consider this question from the standpoint of the well -

established meaning of "consent":      a "voluntary yielding to what another

proposes or desires." Black's Law Dictionary 380 (11th ed. 2019). Stated

conversely, an "involuntary yielding" is not consent. Because the question

whether plaintiff was able to voluntarily yield to defendant's actions requires

consideration of her state of mind at the time, we find an appropriate analogy in

the intoxication defense available in the criminal justice setting because that

defense challenges the actor's ability to form the state of mind required by the

offense charged.

      A criminally-accused individual's intoxication will "negative[] an element

of the offense," N.J.S.A. 2C:2-8(a), when it produces "a disturbance of mental

or physical capacities," N.J.S.A. 2C:2-8(e)(1). The Supreme Court interpreted

this latter provision "as intend[ing] nothing different" than the "firmly fixed"

concept, State v. Cameron, 104 N.J. 42, 54 (1986), that an accused's intoxication

has caused "such prostration of the faculties . . . as puts the accused in such a




individual has voluntarily agreed to engage in sexual relations. The strong
public policy that favors keeping our streets and roadways safe from "the
senseless havoc and destruction caused by intoxicated drivers," State v. Tischio,
107 N.J. 504, 512 (1987), warranted the placement of a bar lower than that which
would logically fix the place where a particular state of mind can or cannot be
formed in criminal actions or in cases like this.
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                                      11
state [of being] incapable of forming an intention from which" the accused acted,

ibid. (quoting State v. Treficanto, 106 N.J.L. 344, 352 (E. & A. 1929)).

      This certainly does not mean that one "who has had a few drinks" meets

the standard. Cameron, 104 N.J. at 54 (quoting State v. Stasio, 78 N.J. 467, 495

(1979) (Pashman, J., concurring and dissenting)). Far from it. "The mere intake

of even large quantities of alcohol will not suffice." Stasio, 78 N.J. at 495.

When intoxication is proposed as a defense to a criminal charge, it "cannot be

established solely by showing that the defendant might not have committed the

offense [if] sober." Ibid. (citing Final Report of the New Jersey Criminal Law

Revision Commission, Vol. II, Commentary (1971) at 68).              In short, the

intoxication required to reach the "prostration of faculties" standard must be of

"an extremely high level." Cameron, 104 N.J. at 54; see also State v. Mauricio,

117 N.J. 402, 418-19 (1990).

      Because the question posed here goes to the same inquiry – ascertaining

the intoxicated person's ability to form a particular state of mind – we see no

reason not to apply the "prostration of faculties" standard. The Legislature's

silence as to the degree of intoxication required in this context7 strongly suggests


7
  We are mindful the Legislature made reference to intoxication in SASPA by
barring courts from denying relief "due to . . . the alleged victim's or the
respondent's alleged intoxication." N.J.S.A. 2C:14-16(b). In that same
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                                        12
an intention to adopt the familiar standard that has been utilized in criminal

matters, as the Cameron Court observed, 104 N.J. at 54, for more than a century

in this State. In applying this standard, we conclude that it will not suffice for

an alleged victim to prove mere intoxication or that she would not have engaged

in sexual relations with the defendant were she not intoxicated. An alleged

SASPA victim must prove intoxication to such a degree that her faculties were

prostrated to the point of being incapable of consenting to the sexual encounter.

      In turning to the judge's findings on intoxication, we start with the fact

that the judge did not apply the prostration of faculties standard. The judge only

concluded that plaintiff was "extreme[ly] voluntar[il]y intoxicat[ed]" and

"visibl[y] intoxicat[ed]."     These conclusory descriptors provide little

illumination. See Cameron, 104 N.J. at 56 (observing that statements that one

was "pretty intoxicated," "pretty bad," and "very intoxicated," "are no more than

conclusory labels, of little assistance in determining whether any drinking


provision, the Legislature also commanded that relief not be denied because of:
the alleged victim's "failure to report the incident to law enforcement"; the fact
that the alleged victim "did or did not leave the premises to avoid" the event; or
"the absence of signs of physical injury to the alleged victim." Ibid. While, in
this fashion, the Legislature may have declared that intoxication could not be
used as a ground for denying relief, there is nothing in SASPA to suggest the
Legislature meant to treat the role of intoxication – as it applies to the alleged
victim's ability to consent – in a manner different from what N.J.S.A. 2C:14-1(i)
and Cameron require.
                                                                          A-0139-18T4
                                       13
produced a prostration of faculties"). The judge did, however, provide some

specifics. He found, for example, that "the young plaintiff consumed at least

[ten] if not more alcoholic drinks during the course of the evening," but he did

not define how many hours were encompassed by the phrase "the course of the

evening" nor did he identify the type of drinks consumed. The judge found that

plaintiff and Sylvia drank at Sylvia's home and two bars, that bartenders refused

to continue to serve Sylvia, 8 and that once at defendant's residence, plaintiff had

three more drinks. These findings relate to some of the indicia the Cameron

Court deemed relevant when it called for a consideration of "the quantity of

intoxicant consumed" and "the period of time involved." Id. at 56. But the

Cameron Court also found relevant: "the actor's conduct as perceived by others,"

what the actor "said" and how the actor "said it," how the actor "appeared" and

"acted," the actor's "coordination or lack thereof" and how that "manifested

itself[,]" whether there was an "odor of alcohol," the results of any blood-alcohol

tests, "and the actor's ability to recall significant events." Ibid. The evidence

adduced at trial did not necessarily produce useful information on all these

factors that may explain why the judge did not make findings on some of these



8
    There was no assertion that either bartender refused to serve plaintiff.


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                                         14
components. The judge did find, though, that plaintiff was able "to recall the

significant events," despite her testimony that she was unable to recall some

"details"9 and her memory was "hazy" about others. In the final analysis, we

will not attempt to discern whether the judge's specific findings about plaintiff's

intoxication might be interpreted as the equivalent of a finding that plaintiff's

faculties were prostrated. 10 We instead remand for further consideration of the

issue now that we have determined the correct standard to be applied.

      To summarize, we conclude that mere intoxication will not suffice; to

prove a mental incapacity caused by intoxication, the alleged victim must

demonstrate by a preponderance of the evidence that her faculties were

prostrated. Because the judge did not apply this standard, we remand for further



9
   In asserting an inability to recall "exact details," plaintiff was able to recall
with detail some of the events preceding the sexual encounter, including
"walking around in the main area [of defendant's home] for what felt like hours
. . . trying" to get Sylvia to go to bed and how Sylvia kept "coming back out."
She was also able to remember and describe a telephone call with a friend who
had just learned his younger brother had been diagnosed with cancer. She
recalled that her friend was angry with her "for being so drunk" and she
remembered defendant putting her "over his shoulder and carr[ying] [her] into
the house." She also provided many specifics about the sexual encounter.
10
   For the same reason, we do not defer to the judge's conclusion that "plaintiff's
extreme voluntary intoxication rendered her 'temporarily incapable of
understanding the nature of her conduct,'" because that ultimate conclusion was
reached without any apparent application of the prostration of faculties standard.
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                                        15
findings. The judge may reopen the record to allow for additional testimony on

this or any other subject if he concludes it would be helpful in analyzing and

reconsidering not only the intoxication issue but all aspects of the consent issue .

      We also do not foreclose the judge's receipt of additional testimony or his

further amplification of his second prong findings, which we do not otherwise

address at this time, despite defendant's contention that the evidence was

inadequate and the findings speculative.

                                       ***

      Remanded for further proceedings in conformity with this opinion. We

do not retain jurisdiction.




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