concurring in part and dissenting in part.
I am unable to agree with my colleagues on two aspects of their opinion. First, I would conclude that it is constitutional, reasonable and clearly contemplated under N.J.S.A. 9:17-51 that an order for blood or genetic testing of a party to a paternity proceeding may be made where the action is commenced by a verified complaint, that is, sworn and subscribed to before a person authorized to administer an oath. That is the case here; thus, to my view, it should be sufficient to satisfy the concern of the majority that there be “an articulable reason for suspecting defendant is the father.” Ante at 12, 578 A.2d at 386. I submit that the majority’s suggestion that the request for blood tests “be made at the pretrial conference accompanied by either documentary submissions or testimony sufficient to enable the court to determine whether there is an articulable reason for suspecting that the defendant is the father[]” unnecessarily burdens and delays the proceedings. Ante at 13, 578 A.2d at 387.
N.J.S.A. 9:17-48d contemplates that an order to submit to blood tests or genetic tests may be entered by the court where a party refuses to accept a recommendation for settlement made on the basis of the information produced at a consent conference. This section envisions that blood tests or genetic tests may have been already available at the consent conference so that a court may not even be required to enter an order to compel testing. Requiring a preliminary showing beyond a verified complaint may well have the effect of deterring putative fathers from consenting to testing at an early stage in the proceedings, thereby rendering most consent conferences inef*16fective as a vehicle for reaching consent agreements without the need for additional court conferences and trials.
I agree with the majority position in the instance where the man against whom the verified complaint is signed then attempts to allege that another man is the father of the child and the court order is then directed against the latter individual. In such circumstances, the additional man is to be made a party to the action. See N.J.S.A. 9:17-50e. In this situation there will not be a verified complaint against the additional party, and therefore, there should be either a documentary submission under oath or testimony to enable the court to determine whether out-of-court testing of that individual is appropriate. Indeed, under N.J.S.A. 9:17-50e, testimony as to sexual intercourse between the other man and the mother is not even admissible unless the other man has undergone blood tests or genetic tests which do not exclude the possibility of his paternity of the child. There is a clear legislative intent in these circumstances to prevent scurrilous accusations and contrived evidence by the putative father named in the original verified complaint.
My second area of disagreement is with what appears to be the majority’s approval of a policy that will encourage incarceration to coerce compliance with court orders for blood or genetic tests. The Legislature has declared:
The refusal to submit to blood tests or genetic tests, or both, may be admitted into evidence and shall give rise to the presumption that the results of the tests would have been unfavorable to the interest of the party refusing. Refusal to submit to blood tests or genetic tests, or both, is also subject to the sanctions within the jurisdiction of the court. [N.J.S.A. 9:17—51d].
I agree that there is nothing in this legislative enactment which would preclude the court from exercising its inherent power to incarcerate as a means of coercing compliance with its order; however, I believe it is apparent that if the Legislature had thought such judicial action were warranted as routine protocol, it would have specifically so provided. Instead, the Legislature has made specific reference to the consequences of *17refusal to submit to testing. Very simply, the refusing party accepts the statutory consequence of a presumption that the results of the test would have been unfavorable. N.J.S.A. 9:17-51d.
If a defendant is willing to proceed subject to that detriment, then I see no valid reason in the absence of extraordinary circumstances why the court should undertake to incarcerate him in order to coerce compliance. It is unnecessary and will promote delay. Furthermore, it is unduly expensive, uses much needed jail space, gives the appearance of unreasonable and excessive use of judicial power, and can result in grave emotional and economic hardship to the party and his dependents. Further, as defendant here has noted, there may be personal health and safety concerns in submitting to blood testing. If a defendant is willing to accept the adverse presumption, a court should defer to his election to refuse testing.
The mere fact that the court has the power to incarcerate to coerce compliance with its order does not mean that the use of that power should be encouraged. The Legislature’s reference to a person who refuses to submit to testing as being “also subject to the sanctions within the jurisdictions of the court[,]” in my view refers to punishing for the contempt which is a consequence of the party’s refusal to obey the court’s order. See N.J.S.A. 2A:10-1(c); see also N.J.S.A. 2C:29-9. Thus, a court may find a party in civil contempt and impose a fine pursuant to N.J.S.A. 2A:10-5. The court may choose to initiate a criminal proceeding pursuant to N.J.S.A. 2C:29-9; however, if a criminal action is brought a defendant is entitled to all due procedural and constitutional protections, including indictment and jury trial. However, a court may not impose a sanction or punishment under the guise of a coercive order. It is a firm principle of law that an order for incarceration to bring about coercive compliance is not a sanction and may not be imposed to punish, nor may it remain in effect once it has lost its coercive effect. See Acceturo v. Zelinski, 242 N.J.Super. 281, 576 A.2d 900 (App.Div.1990); see also Shillitani v. United States, 384 *18U.S. 364, 370, 86 S.Ct. 1531, 1535-36, 16 L.Ed.2d 622, 627 (1966); Catena v. Seidl (Catena I), 65 N.J. 257, 262, 321 A.2d 225 (1974).
The majority’s reference to State v. Cary, 49 N.J. 343, 230 A.2d 384 (1967), ante at 9, 578 A.2d at 385, is an inappropriate measure of the proper policy considerations to be weighed by this court as defendant in Cary was charged with murder. The opinion considered his arguments of self-incrimination and due process violations in an entirely different context. Likewise, the decision in United States v. Bryan, 339 U.S. 323, 331-32, 70 S.Ct. 724, 730, 94 L.Ed. 884, 891 (1950), see ante at 9, 578 A.2d at 385, dealt with testimonial and documentary evidence and concerned the compelling of such evidence before a congressional committee.
I remain unpersuaded that the courts of this state should adopt a policy which would lead us further into the Acceturo quagmire. I would hold that in these circumstances it was an abuse of discretion to have ordered defendant’s incarceration in an attempt to coerce his compliance with the Family Part’s order for testing.