cdTOCtest

See also Tri-State Met. Naturists v. Lower Twp., 219
N.J. Super. 103, 115-15 (Law Div. 1987) (township could
not ban nude sunbathing on regulated, state-owned
property; moreover, lewdness statute addresses more than
nudity or public indecency, it is aimed at a form of “sexual
aggression”).

III. RELATED OFFENSES (See also, ENDAN-

GERING THE WELFARE OF CHILDREN, this

Digest)

A defendant who engages in conduct proscribed under
Chapter 14 of the New Jersey Criminal Code with a child
under the age of 16, is also guilty of endangering the welfare
of a child. See N.J.S.A. 2C:24-4. A person who has a legal
duty for the care of a child or who has “assumed
responsibility” for the care of a child and who is found to
have endangered the welfare of that child is guilty of a crime
of the third degree. Any other person found to have
endangered the welfare of a child is guilty of a fourth degree
crime. See State v. Galloway, 133 N.J. 631 (1993).

The endangering statute also prohibits child
pornography. See N.J.S.A. 2C:24-4b. State v. Brady, 332
N.J. Super. 445 (App. Div. 2000).

IV. DEFENSES (See also, DEFENSES, this Digest)

A. No Age, Impotency, or Marriage Defense

“No actor shall be presumed to be incapable of
committing a crime under this chapter because of age or
impotency or marriage to the victim.” N.J.S.A. 2C:14-5b.
See State v. Smith, 85 N.J. 193, 196 (1981); State v.
Morrison, 85 N.J. 212, 216 (1981).

But see State in the Interest of C.P. and R.D., 212 N.J.
Super. 222 (Ch. Div. 1986): Two juveniles, age six and
nine years, respectively, were charged with aggravated
sexual assault after they physically restrained a six-year-old
victim and inserted their fingers in her vagina. Although
the Chancery Court acknowledged that no actor is to be
presumed to be incapable of committing a crime because of
his or her age, the court dismissed the indictment based
upon psychiatric testimony that the juveniles could not
have formed the mental intent, the “knowing awareness,”
required by the statute.

B. No Mistake as to Age Defense

“It shall be no defense ... that the actor believed the
victim to be above the age stated for the offense, even if such

a mistaken belief was unreasonable.” N.J.S.A. 2C:14-5c.

See State v. Rodriguez, 179 N.J. Super. 129, 133 (App. Div.

1981), where the trial court accepted a guilty plea to 2C:14-

2c(5), despite defendant’s assertion that the victim

appeared at least 16 years old. See also State v. Moore, 105

N.J. Super. 567, 570 (App. Div.), certif. denied, 54 N.J. 502

(1969).

C. Consent

Consent is no defense to the “statutory rape”

provisions embodied in 2C:14-2a(1); 2C:14-2b, 2C:14-

2c(4), and 2C;14-2c(5). See State v. Rodriguez, 179 N.J.

Super. 129, 133 (App. Div. 1981), where the trial court

accepted a guilty plea to 2C:14-2c(5), despite defendant’s

assertion that child-victim consented. See also State v.

Thomas, 322 N.J. Super. 512, 515 (App. Div.), certif.

denied, 162 N.J. 489 (1999) (consent irrelevant to sexual

assault against a child under 13); State v. Burden, 203 N.J.

Super. 149, 153-155 (Law Div. 1985).

Consent is a defense where use of force is an element of

the offense, such as in 2C:14-2a(6) and 2C:14-2c(1).

Consent may be inferred either from acts or statements

reasonably viewed in light of the surrounding circum-

stances. State in Interest of M.T.S., 129 N.J. 422, 444

(1992). It is often “indicated through physical actions

rather than words.” Id. at 445. Consent is demonstrated

“when the evidence, in whatever form, is sufficient to

demonstrate that a reasonable person would have believed

that the alleged victim had affirmatively and freely given

authorization to the act.” Id. at 445.

“In a case ... in which the State does not allege violence

or force extrinsic to the act of penetration, the fact finder

must decide whether the defendant’s act of penetration was

undertaken in circumstances that led the defendant

reasonably to believe that the alleged victim had freely

given affirmative permission to the specific act of sexual

penetration. Such permission can be indicated either

through words or through actions that, when viewed in

light of all the surrounding circumstances, would

demonstrate to a reasonable person affirmative and freely-

given for the specific act of sexual penetration.” Id. at 447-

448.

Burden of Proof: the State must prove beyond a

reasonable doubt that there was sexual penetration and that

it was accomplished without the affirmative and freely-

given permission of the alleged victim. Such proof can be

based on evidence of conduct or words in light of

surrounding circumstances and must demonstrate beyond

a reasonable doubt that a reasonable person would not have