The following section was added to the Attorney General Criminal Justice Reform Directive:
4.6.3.a 0ffenses for which the ODARA Shall be Completed. The ODARA’s requirements of physical contact or a threat of death with a weapon will exclude from risk assessment some offenses that might be charged as domestic violence (e.g. harassment, N.J.S.A. 2C:33-4; criminal mischief, N.J.S.A. 2C:17-3; stalking, N.J.S.A. 2C:12-10; attempts to cause bodily injury, N.J.S.A. 2C:12-1(a)(1); acts of physical menace, N.J.S.A. 2C:12-1(a)(3); and terroristic threats made without a weapon, N.J.S.A. 2C:12-3). Accordingly, instances of domestic violence that do not involve physical violence or a threat of death with a weapon should not be assessed under the ODARA. It is acknowledged that harassment can include physical contact. See N.J.S.A. 2C:33-4(b) (striking, kicking, shoving, or other offensive touching). However, with a very limited exception, harassment constitutes a petty disorderly persons offense and, for that reason, does not fall within the realm of the Bail Reform Law, N.J.S.A. 2C:162-16 to -26.
For this reason, harassment has not been included in the list of offenses triggering a mandatory assessment under the ODARA. Law enforcement officers shall complete the ODARA in those cases of domestic violence (as defined by N.J.S.A. 2C:25-19) in which the following offenses are charged and the “Victim” is a “Partner” (as those terms are defined above): — homicide (N.J.S.A. 2C:11-1); — aggravated assault (N.J.S.A. 2C:12-lb); — simple assault with contact or with a weapon (N.J.S.A. 2C:12-la), — sexual assault (N.J.S.A. 2C:14-2) — criminal sexual contact (N.J.S.A. 2C:14-3) — false imprisonment with contact or with a weapon N.J.S.A. 2C:13-3); kidnapping (N.J.S.A.2C:13-1); — burglary, 2nd degree with contact or with a weapon (N.J.S.A. 2C:18-2); — terroristic threats with contact or with a weapon (N.J.S.A. 2C:12-3) — robbery (N.J.S.A. 2C:15-1) — any other crime involving risk of death or serious bodily injury (N.J.S.A. 2C:2519a(18).
It is good to see the Attorney General take two very reasonable positions here. First, the ODARA’s use is limited to cases involving allegations of actual “violence.” Second, the Attorney General is not attempting to classify petty disorderly persons offenses as the type of disorderly persons offenses that may subject a defendant to pretrial detention. Still, “physical contact” covers behavior that still is not “violent” under the commonly-accepted definition. Thus, while the Guidelines are reasonable in these two instances, there is still a significant potential for abuse by alleged victims and/or law enforcement.