cdTOCtest

law defenses, however, may be available provided they
have not been precluded by the statute defining the
offense. State v. Fogarty, 128 N.J. 59, 70 (1992).

Police ordering defendant, who was intoxicated, to
get into his truck and leave the scene of a fight was the
exercise of legitimate law-enforcement authority, not the
threat or use of unlawful force, to preclude establishment
of the common-law defense of duress. Moreover, fear of
being arrested, rather than fear of death or serious bodily
injury, does not establish duress under common law.
State v. Fogarty, 128 N.J. 59, 70 (1992).

In a prosecution for escape, where the defendant had
contacted local police officers in Washington, D.C., but
had failed to contact any New Jersey authorities or the
Federal Bureau of Investigation to turn himself in, he was
precluded from asserting the defense of duress as a matter
of law. State v. Stewart, 196 N.J. Super. 138 (App. Div.),
certif. denied,, 99 N.J. 212 (1984).

“Unpleasant” prison conditions do not create a
situation so life-threatening to permit a defendant to
assert the defense of duress in a prosecution for escape.
Moreover, N.J.S.A. 2C:29-5d bars assertion of a defense
based on irregularities in confinement, which includes
general complaints of prison conditions. State v. Morris,
242 N.J. Super. 532 (App. Div.), certif. denied,, 122 N.J.
408 (1990).

The failure of escapees to make a bona fide effort to
surrender or return to custody as soon as they escaped the
alleged hazardous conditions of prison barred assertion of
the duress defense. State v. Saxon, 226 N.J. Super. 653
(Law Div. 1988), aff’d sub nom State v. Morris, 242 N.J.
Super. 532 (App. Div.), certif. denied,, 127 N.J. 321
(1990). Saxon suggests in dicta that duress is available as
a defense to a charge of escape only where there is an
immediate threat of death, serious bodily injury, or
forcible sexual attack and not for conditions such as
overcrowding or poor medical care. 226 N.J. Super. at
657.

B. Procedural Issues and Burden of Proof

Where the defendant or the State has come forward
with evidence to support the defense of duress, the State
must disprove the defense beyond a reasonable doubt.
State v. Galiyano, 178 N.J. Super. 393 (App. Div.), certif.
denied,, 87 N.J. 424 (1981).

It is proper to conduct a pretrial hearing to determine
whether a defendant will be permitted to assert the

defense of duress or necessity. State v. Morris, 242 N.J.

Super. 532 (App. Div.), certif. denied,, 122 N.J. 408

(1990).

V. CONSENT

A. Generally

The defense of consent, N.J.S.A. 2C:2-10, takes

several forms. Consent is a valid defense when:

1. it negates an element of the offense; or


2. it precludes the infliction of the harm or evil sought
   to be prevented by the law defining the defense; or


3. it operates to justify or excuse the threat and/or
   infliction of bodily harm under certain circumstances,
   specifically, the bodily harm is not serious; or the conduct
   or harm are reasonably foreseeable hazards of joint
   participation in a lawful activity; or the consent
   establishes legally sufficient justification under the Code.

Consent, if it is mutual, operates to downgrade a

simple assault from a disorderly persons offense to a petty

disorderly persons offense. N.J.S.A. 2C:12-1a.

Consent is ineffective, unless otherwise provided, if it

is given by a person who is induced by force, duress, or

deception, or by a person who is legally incompetent or

otherwise unable to judge the harmfulness of the

conduct. N.J.S.A. 2C:2-10c.

The juvenile victim’s consent was not a defense to

charges of sexual assault based on the victim’s detention

in an institution and the defendant’s supervisory or

disciplinary power over the victim by virtue of his legal,

professional, or occupational status since the law defining

the offense, N.J.S.A. 2C:14-2c(3), recognizes the

unequal positions of power and inherent coerciveness of

the situation which could not be overcome by evidence of

the victim’s apparent consent. State v. Martin, 235 N.J.

Super. 47, 56-58 (App. Div.), certif. denied, 117 N.J. 669

(1989).

B. Procedural Issues and Burden of Proof

Consent is an “ordinary” defense and, as such, must

be disproved by the State with no burden on the

defendant to produce any evidence in support of the

defense. There still must be a rational basis in the

evidence to justify a jury charge on the defense. See