Text Messages Established “Dating Relationship” For Domestic Violence Purposes

The New Jersey Appellate Division affirmed the entry of a domestic violence restraining order.

In this case of first impression, we examine the meaning of a “dating relationship” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, where the parties never experienced a traditional, in-person “date.” Instead, their relationship was demonstrated by the intensity and content of their communications, including the exchange of nearly 1300 highly personal text messages. We conclude the proliferate and exceedingly intimate communications between the parties constituted a dating relationship within the meaning of the Act and supported entry of the final restraining order (FRO). We therefore affirm.

In the mid-summer of 2018, the parties met at a fitness center where plaintiff was employed as the general manager and defendant was a new member. Defendant had transferred his membership to that location when he moved to the area from Pennsylvania. Nearly every time he exercised at the gym – about three to five times per week – defendant sought plaintiff’s attention, engaging her in intimate conversations about her personal life. Plaintiff was twenty-two years old; defendant was almost twenty years her senior.

At some point, defendant gave plaintiff his cellphone number, but plaintiff did not text him until the end of September. During the ensuing five weeks, the parties exchanged text messages at all hours of the day and night. Many of the messages were sexually explicit and suggestive in nature. The parties discussed in graphic detail: their sexual preferences; their prior dating experiences; their recreational drug and alcohol use; and the traits they desired in a partner. Plaintiff testified about a sampling of the text messages.

On October 20, defendant sent plaintiff a message, apparently declaring his romantic interest in her…

Later that day, defendant sent plaintiff a message stating, “you would/will be the youngest I’ve hooked up with.” Plaintiff explained the phrase, “hooked up,” meant an  [i]ntimate relationship, sex generally.” Plaintiff did not discourage defendant’s advances. Rather, the parties had several discussions about “meeting up,” which plaintiff defined as getting together “[i]n person, outside of work, on a date.”

On October 22, defendant cancelled their plans; the parties continued their discourse; four days later, plaintiff cancelled their date. Plaintiff testified she had other plans, but also “felt uncomfortable meeting up with him outside of work.” Apparently, plaintiff did not share her feelings with defendant. The following day, the parties exchanged more than thirty text messages.

Plaintiff explained some of the messages, which she characterized as “flirting.”

But

By November 1, the parties had exchanged 1097 text messages and continued to speak in person at the gym. On November 4 – after plaintiff sent defendant messages indicating she no longer “s[aw] the need for further communication” other than “as a friend” – the tenor of defendant’s messages changed completely. What followed can only be described as a barrage of six rapid-fire messages from 11:37 p.m. to slightly before midnight, followed by several lengthy messages from 12:23 a.m. to mid-afternoon on November 5. Many of the messages contained vulgar, insulting, and threatening language, the details of which we need not recount here.

In essence, defendant threatened to contact plaintiff’s employer in an effort to have her fired for taking – what he belatedly claimed was – an unauthorized photograph of him at the gym. Defendant also threatened to institute a civil lawsuit against plaintiff, knowing her finances prevented her from hiring counsel to defend it. In one particularly notable example, defendant wrote, “you really don’t know who I am which is so shocking because I thought you would have known by now.”

After awakening and reading defendant’s barrage of harassing messages on November 5, plaintiff conducted an internet search of defendant’s name. Among other things, plaintiff discovered defendant had been convicted of stalking and harassing a woman he dated in Pennsylvania…

That same morning, plaintiff reported the incident to the local police and her employer, who terminated defendant’s gym membership. In doing so, plaintiff discovered someone had accessed defendant’s electronic membership account earlier that morning and changed his address on file to her home address. At some point, the detective assigned to her case advised plaintiff to seek a restraining order. On November 17, plaintiff filed her initial complaint, upon which a TRO was granted that same day by a municipal court judge. A criminal complaint also was filed against defendant on that day.

At issue is the definition of a dating relationship

Where, as here, the nature of the parties’ relationship is the pivotal prerequisite to acquiring jurisdiction under the Act, the trial judge should consider the factors identified in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), as adopted by our court in S.K. v. J.H., 426 N.J. Super. 230, 235 (App. Div. 2012). Those factors are:
1. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?
2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?
3. What were the nature and frequency of the parties’ interactions?
4. What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly?
5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?
6. Are there any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists?

Here

We are satisfied the record contains sufficient credible evidence to support the judge’s finding that the parties were involved in a dating relationship. As recounted by plaintiff, the parties regularly engaged in intimate communications, evidenced by the plethora of sexually explicit text messages over the course of several months. Plaintiff testified the relationship “started out” as a “friendship” then “progressed to an intimate level.” Toward the end of their relationship, defendant sent messages, stating: “You feel things deeper than most and can’t help but give your heart away . . . . I see you and like who I see.” Thereafter, plaintiff acknowledged: “[Y]ou’ve figured out much more about me then [sic] most people do . . . .” Defendant also acknowledged his expectation that the parties intended to “hook up.”

…although we agree with the trial judge that the parties’ dating relationship was “peculiar” because they never experienced an in-person date, we also acknowledge the prevalence of virtual communications in the everchanging world. Text messaging and other forms of electronic communication enable rapid yet deep interactions at all hours. Those communications can form bonds that may be no less intimate than sharing a dinner or movie. Nor is the lack of sexual relations dispositive. Because we have recognized “dating is a loose concept” that changes “from one generation to the next,” J.S., 410 N.J. Super. at 616, the volume and intensity of text message communications can establish a dating relationship, even in the absence of a traditional in-person date. 

The court disposed of the remaining contentions

the thrust of defendant’s argument is that – even if he committed an act of harassment – an FRO was not required to protect plaintiff. To support his argument, defendant contends there was no history of domestic violence between the parties, and four months had elapsed between the parties’ last contact and the entry of the temporary restraining order (TRO). Defendant’s contentions are unavailing.

Conclusion

although plaintiff could not prove the continuing anonymous messages that were alleged in her April 15 amended domestic violence complaint were sent by defendant, the trial judge found plaintiff’s testimony established the totality of defendant’s conduct placed her in fear. We are satisfied the credible evidence in the record supports the judge’s decision that the FRO was necessary to protect plaintiff from immediate danger or future abuse. See N.J.S.A. 2C:25-29(b); Silver, 387 N.J. Super. at 127.

(Mike Frisch)