cdTOCtest

touching must be in view of the victim and defendant must
be aware of the victim’s presence. See State v. Zeidell, 154
N.J. 417 (1998) (defendant who masturbated himself
under boardwalk 75 feet away from young victims, but
within their view, guilty of sexual contact even though he
did not direct his act toward any particular victim); State v.
Ridgeway, 256 N.J. Super. 202 (App. Div.), certif. denied
130 N.J. 18(1992) (defendant who called 11 year old
victim over to his car, then masturbated himself in her
presence, guilty of sexual contact).

The definition of “intimate parts” is clearly set forth in
N.J.S.A. 2C:14-1e and needs no case law explanation. See
State v. J.S., 222 N.J. Super. 247, 257-58 (App. Div.), certif.
denied 111 N.J. 588 (1988)(finding that specification of
the particular “intimate parts” was not an essential element
of the offense, and trial court’s amendment of the
indictment from “breast and inner thigh” to “the vagina” in
conformance with the evidence was proper); State v. Gray,
206 N.J. Super. 517, 521-22 (App. Div. 1985), certif.
denied 103 N.J. 463 (1986)(even though indictment
specified intimate parts as “vagina and genital area,”
defendant could be convicted of sexual contact with other
intimate parts, such as the “inner thigh” because it is in the
“same zone of privacy” as the genital area).

“Severe personal injury” includes “incapacitating
mental anguish” which has been defined as “severe
emotional distress or suffering which results in a temporary
or permanent inability of the victim to function in some
significant area of her life, such as employment, ability to
care for herself, or in her capacity as spouse, homemaker or
mother. State v. Walker, 216 N.J. Super. 39,43 (App. Div.),
certif. denied 108 N.J. 179 (1987). “Temporary incapacity”
means more than a fleeting, short-lived or brief incapacity.
Id. In State v. Mosch, 214 N.J. Super. 457, 467 (App. Div.
1986), certif. denied 107 N.J. 131 (1987), the court
concluded that emotional trauma suffered by victim of
sexual assault can cause greater damage than physical injury
since “psychological scars may never heal.” See generally,
Collins v. Union County Jail, 150 N.J. 407 (1997), a civil
case in which the Court held that the psychological harm
suffered by the victim as the direct result of sexual assault by
a corrections officer was a “permanent loss of a bodily
function” which will afflict the victim for “the rest of his
life.” Id. at 420-21.

“Physically helpless” means totally unconscious or
when a person is physically unable to flee or physically
unable to communicate an unwillingness to act. A person
who is asleep is “physically helpless” within the meaning of
the statute. State v. Rush, 278 N.J. Super. 44, 48 (App. Div.
1994).

“Mentally defective” within the context of Chapter 14

means a victim, who at the time of the sexual activity, is

unable to comprehend the distinctively sexual nature of the

conduct or is incapable of understanding or exercising the

right to refuse to engage in such conduct with another. See

State v. Olivio, 123 N.J. 550, 564 (1991), for thorough

discussion on “mentally defective” within the context of

the statute. See also State v. Scherzer, 301 N.J. Super. at 398-

99, where psychiatric evidence was introduced to establish

victim’s incapacity to understand her right to refuse to

engage in sexual activity. In both Olivio and Scherzer,

defendants were found to have known or should have

known of the respective victim’s mental incapacity. State v.

Olivio, 123 N.J. at 568; State v. Scherzer, 301 N.J. Super. at

404. See also State v. Cuni, 303 N.J. Super. 584, 600-02
     (App. Div. 1997), aff’d 159 N.J. 584 (1999) discussing
     whether defendant knew or should have known that victim
     was mentally defective.

There appears to be no case law defining the term

“mentally incapacitated” under N.J.S.A. 2C:14-1i.

However, it is suggested that the definition is limited to

“non-consensual incapacitation” of the victim’s mind by

means of the administration of intoxicants, including

drugs. See Cannel, Criminal Code Annotated, Comment 9

to N.J.S.A. 2C:14-1. Cannel also suggests that the statutory

phrase “other act committed upon” the victim may include

hypnosis.

“Date rape” or “acquaintance rape” means forced

sexual activity between persons who know one another,

most often by male relatives, current or former husbands,

boyfriends or lovers. Generally, guns or knives are not used

in these types of sexual assaults, and victims do not suffer

external bruises or cuts. See generally, State in Interest of

M.T.S., 129 N.J. at 446-47; State v. Lyles, 291 N.J. Super.

517 (App. Div. 1996), certif. denied 148 N.J. 607 (1997).

II. TYPES OF SEXUAL OFFENSES

A. In General

Any act of sexual penetration engaged in by defendant

without the “affirmative and freely-given permission of the

victim to the specific act of penetration constitutes the

offense of sexual assault.” State in Interest of M.T.S., 129

N.J. 422, 444 (1992). “Physical force in excess of that

inherent in the act of sexual penetration is not required for

such penetration to be unlawful.” Id. “Physical force”

under N.J.S.A. 2C:14-2c(1) is satisfied if defendant uses

“any amount of force” in the absence of what a “reasonable

person would believe to be affirmative and freely-given

permission to the act of sexual penetration.” Ibid.