In the world of domestic violence law, it is virtually axiomatic that “words alone” may be sufficient for a Court to conclude that a predicate act of domestic violence had occurred. That assumption was upset in the recently decided case of State v. Burket, a non-family law decision.

In Burket, the parties (Halton and Burket) were work colleagues whose friendship shattered after Burket read online comments by Halton’s wife that he believed were intended to insult him and his family.

In retaliation, Burket downloaded Halton’s wedding picture and created flyers inscribing crude and offensive language on the picture which were circulated at their mutual place of employment.

As a result, Halton expressed concern for his safety and filed a complaint against Burket in municipal court alleging criminal harassment. Upon being found guilty, Halton appealed.

The appellate court proceeded to throw out Halton’s conviction on the basis that Halton’s writings did not rise to the level of criminal harassment in light of his constitutionally protected freedom of speech.

The New Jersey Supreme Court affirmed the appellate court’s ruling.

Why Does this Matter in Domestic Violence Law?

The Burket case is significant to domestic violence law since a large number of applications for restraining orders are based on some type of “expressive activity” which implicate same criminal harassment statute as in Burket.

Thus, such domestic violence cases will now turn on whether the communications engaged in by the defendant are free speech or whether they placed the victim in fear for her/his safety or intolerably interfered with her/his reasonable expectation of privacy.

In addition to persons involved in such cases, all lawyers and Judges handling domestic violence matters must become familiar with the new landscape.