some form of intimidation). For discussion on force and
coercion in group setting, see State v. B.G., 247 N.J. Super.
403, 409-17 (App. Div. 1991). For general discussion of
force and coercion see State v. M.T.S., 129 N.J. 422, 444
(1992) and State v. Oliver, 133 N.J. 141, 155-56 (1993).
N.J.S.A. 2C:14-2a(6) - defendant uses physical force or
coercion and the victim sustains severe bodily injury. See
State v. Jones, 308 N.J.Super. 15, 39 (App. Div. 1998),
where defendant used bat, pitchfork and saw in the course
of murder and aggravated sexual assault.
N.J.S.A. 2C:14-2a(7) - the victim is someone
defendant knew or should have known was physically
helpless, mentally defective or mentally incapacitated. See
State v. Rush, 278 N.J. Super. 44 (App. Div. 1994) (a
sleeping person is “physically helpless”). See also State v.
Cuni, 159 N.J. 584, 600-02 (1999) and State v. Olivio, 123
N.J. 550 (1991), for discussion on type of evidence that
establishes incapacity, and fact that defendant must know
or be in a position to know of the victim’s incapacity.
C. Sexual Assault
A sexual assault under N.J.S.A. 2C:14-2b is a second
degree offense and is known as a “tender years” sexual
assault. There are three key elements to this offense:
- a victim who is less than 13 years old;
- a defendant who is at least four years older than the
victim; and - a sexual contact with the under 13-year old victim.
The sexual contact for this offense is the intentional or
purposeful touching of an intimate part of the victim.
There are three types of intentional sexual touching:
the defendant touches himself or herself; the defendant
touches the victim, or the victim touches the defendant.
This intentional sexual touching must have at least one
of the following four purposes: to degrade the victim; to
humiliate the victim; to sexually arouse defendant, or to
sexually gratify defendant.
If the sexual touching by defendant is to himself or
herself, the touching must be in view of the victim whom
defendant knows to be present.
For a thorough discussion on “tender years” sexual
assault, see State v. Zeidell, 154 N.J. 417 (1998). See also
State v. Budis, 125 N.J. 519, 537 (1991) (victim under the
age of 13 cannot consent to sexual conduct); State v.
Thomas, 322 N.J. Super, 512, 515 (App. Div.), certif.
denied 162 N.J. 489 (1999)(consent is a non-issue in sexual
assault of a victim under 13 years of age); State v. Burden,
203 N.J. Super. 149, 153-55 (Law Div. 1985)(victim 16 or
under cannot incapable of giving consent to sexual
conduct); State v. A.N., 267 N.J. Super. 158 (Ch. Div.
1993) (physical appearance alone may be sufficient to
prove the age element if any reasonable trier of fact would
be able to find physical appearance alone sufficient to prove
age beyond reasonable doubt); State v. Gray, 206 N.J.
Super. 517 (App. Div. 1985), certif. denied 103 N.J. 463
(1986) (when indictment charges offense under this statute
with specificity and gives the victim’s age, it is not necessary
to set forth defendant’s age or the difference in age between
victim and defendant); State in Interest of K.A.W., 104 N.J.
112 (1986) (when under 13-year-old victim cannot
remember exact dates of assault, dates not necessary as long
as defendant has sufficient notice to prepare a defense).N.J.S.A. 2C:14-2c sets forth seven categories of second
degree sexual assault, all of which require penetration and
either physical force or coercion.An actor is guilty of sexual assault if he commits an act
of sexual penetration with another person under any one of
the following circumstances:N.J.S.A. 2C:14-2c(1) - defendant uses physical force or
coercion, but the victim does not sustain severe personal
injury. See State v. M.T.S., 129 N.J. 422 (1992) (sleeping
victim awoke to find defendant engaged in penetration;
defendant ceased conduct when told to do so). See also
State v. Blacknall, 288 N.J. Super. 466 (App. Div. 1995),
aff’d 143 N.J. 419 (1996) (kidnaping and second degree
sexual assault, although main issue is double jeopardy);
State v. Lightner, 99 N.J. 313 (1985) (force or coercion
essential elements of this offense).N.J.S.A. 2C:14-2c(2) - the victim is on probation or
parole, is detained in a hospital, prison or other institution
where defendant has supervisory or disciplinary power over
the victim by virtue of his legal, professional or
occupational status. See State v. Spann, 236 N.J. Super. 13
(App. Div), aff’d 130 N.J. 484 (1993) (prison guard
sexually assaulted female inmate who became pregnant as a
result); State v. Martin, 235 N.J. Super. 47 (App. Div.),
certif. denied 117 N.J. 669 (1989) (supervisor in juvenile
shelter engaged in sexual conduct with juvenile resident;
“consent” was not a defense).