SEXUAL OFFENSES ANDSEXUAL OFFENSES ANDSEXUAL OFFENSES ANDSEXUAL OFFENSES ANDSEXUAL OFFENSES AND
OFFENDERSOFFENDERSOFFENDERSOFFENDERSOFFENDERS(See also, PROSTITUTION, OBSCENITY,
this Digest)
I. INTRODUCTION
A. Sex Offenses In General
N.J.S.A. 2C:14-1 et seq. supercedes Title 2A statutes on
rape (N.J.S.A. 2A:138-1), sodomy (N.J.S.A. 2A:143-1 and
2) and incest (N.J.S.A. 2A:114-1), and combines these
offenses under the general terms of “sexual assault” and
“sexual contact.” The Legislature’s reformed concept of
sexual offenses is analogous to the law of assault and
battery. Sexual offenses are now viewed as a crime against
the bodily integrity of the victim, and bring this area of law
in line with the expectation of privacy and bodily control
long embodied in most of our private and public law.
Generally, the crimes of sexual assault and sexual
contact require a non-consensual act either of sexual
penetration or of sexual contact. By establishing
definitions for “sexual contact” and “sexual penetration,”
the law permits prosecution for the entire spectrum of
intentional and non-consensual touching of the intimate
parts of the body. The Code does not require the victim to
demonstrate his or her non-consent, and it eliminates the
spousal exception based on implied consent. N.J.S.A.
2C:14-5b. The victim’s state of mind, attitude, or whether
or not she/he resisted the sexual assault and, if so, to what
degree, is a non-issue. N.J.S.A. 2C:14-5a. The issue for the
fact-finder is whether defendant reasonably believed that
the victim freely gave affirmative permission to the act of
penetration or contact. See State v. Oliver, 133 N.J. 141,
155-56 (1993) (defendant who claims he penetrated with
permission puts his own state of mind in issue, and State
can introduce evidence to disprove that defendant had that
state of mind).
For a thorough discussion on the history and evolution
of Chapter 14, and the current state of the law, see State in
Interest of M.T.S., 129 N.J. 422 (1992).
B. Definitions
The following terms are defined in N.J.S.A. 2C:14-1:
“actor,” “victim,” “sexual penetration,” “sexual contact,”
“intimate parts,” “severe personal injury,” “physically
helpless,” “mentally defective,” and “mentally incapaci-
tated.”
“Coercion” is found in N.J.S.A. 2C:14-1j, but is not
specifically defined therein. Instead, Chapter 14 adopts the
definition of “criminal coercion” as defined in N.J.S.A.
2C:13-5(1), (2), (3), (4), (6) and (7). See State v. Queen,
221 N.J. Super. 601, 606 (App. Div. 1988) (“coercion”
includes a threat to inflict bodily harm, while “physical
force” is force applied to the victim’s body). The terms
“actor” and “victim” are gender neutral demonstrating the
intent that either males or females can be an actor or a
victim. See State v. Yarbough, 195 N.J.Super. 135 (App.
Div.), remanded for re-sentencing 100 N.J. 627 (1985), cert.
denied 475 U.S. 1014 (1986) (woman convicted of
aggravated sexual assault).“Sexual penetration” means vaginal intercourse,
cunnilingus, fellatio or anal intercourse between persons,
or insertion of the hand, finger or object into the anus or
vagina by the actor or upon the actor’s instruction. The
depth of insertion is irrelevant. N.J.S.A. 2C:14-1c.
Nonetheless, penetration, however slight, is required. See
State v. Gallagher, 286 N.J. Super. 1, 15 (App. Div. 1995),
certif. denied 146 N.J. 569 (1996) (insertion of defendant’s
penis between left and right buttocks sufficient to support
finding of sexual contact, but not sexual penetration); State
v. J.A., ___ N.J. Super. ___ (App. Div. 2001) (held that
penile penetration of the space between the labia majora or
outer lips of the vulva constitutes “vaginal intercourse”
within the meaning of N.J.S.A. 2C:14-2a(1)).For penetration with inanimate objects, see State v.
Scherzer, 301 N.J.Super. 363, 403-07 (App. Div.), certif.
denied 151 N.J. 466 (1997) (broom handle and baseball bat
into vagina).For legal definition of fellatio, see State in Interest of
S.M., 284 N.J. Super. 611, 616-19 (App. Div. 1995). See
also State v. C.H., 264 N.J. Super. 112, 129 (App. Div.
1993) (finding attempted fellatio as basis for conviction of
attempted sexual assault).For legal definition of cunnilingus, see State v.
Fraction, 206 N.J. Super. 532, 535-36 (App. Div. 1985).
See also State v. Zola, 112 N.J. 384, 408 (1988) (State
sought to prove sexual assault through circumstantial
evidence including presence of saliva in vagina).“Sexual contact” means intentional touching by
defendant or the victim of either the victim’s or defendant’s
intimate parts. Contact may be direct to the body part or
through clothing. The contact or touching must be for the
purpose of degrading or humiliating the victim, or sexually
arousing or sexually gratifying defendant. Where
defendant has sexual contact with himself or herself, this