“Permission” can be inferred either from acts or statements,
which demonstrate that “a reasonable person would have
believed the victim had affirmatively and freely given
authorization to act.” Id. at 445.
B. Aggravated Sexual Assault
N.J.S.A. 2C:14-2 sets forth seven categories of first
degree aggravated sexual assault. These offenses, both in
the actual commission and in an attempt to commit,
recognize an increased risk of physical or psychological
harm to the victim over and above the act of sexual
violence. All seven of these offenses require penetration.
See State v. Cole, 120 N.J. 321, 330-31 (1990).
An actor is guilty of aggravated 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:14-2a(1) - the victim is less than 13 years
old;
N.J.S.A. 2C:14-2a(2) - the victim is at least 13 but less
than 16 years old; and
a. The actor is related to the victim by blood or affinity
to the third degree, or
b. The actor has supervisory or disciplinary power over
the victim by virtue of the actor’s legal,
professional, or occupational status, or
c. The actor is a foster parent, a guardian, or stands in
loco parentis within the household.
Where age of the victim is an element of the offense,
consent is not an issue. Nor is it a defense that defendant
believed the victim to be above that age. N.J.S.A. 2C:14-
5c. The age of the victim and/or defendant must be
specified in the indictment so that defendant is on notice of
the offense against which he must defend. State v. Burden,
203 N.J. Super. 149 (Law Div 1985).
Sexual offenses committed by family members and
non-family members are separate offenses and treated
differently. See State v. Miller, 108 N.J. 112 (1987) and
State v. D.R., 109 N.J. 348 (1988) (endangering
conviction did not merge with aggravated sexual assault
where defendant was victim’s father); State v. Still, 257
N.J.Super. 255 (App. Div. 1992) (defendant was grandson
of victim’s babysitter and had no particular duty to victim,
thus endangering conviction merged with sexual assault
conviction). Defendant and victim, who are stepbrother
and stepsister, are related by “affinity” in the context of
subparagraph (a) above. This familial relationship extends
to aunts and uncles by blood or marriage. State v. Brown,
311 N.J. Super. 273 (Law Div. 1997); see also Cannel,
Comment 2 to N.J.S.A. 2C:14-2.The Appellate Division has recently determined that
the pre-Code crime of “carnal abuse,” under N.J.S.A.
2A:138-1, which has been repealed, is eligible for
expungement. State v. N.W., 329 N.J. Super. 326 (App.
Div. 2000).N.J.S.A. 2C:14-2a(3) - the act of sexual penetration
occurs during the course of other specified criminal
activity, such as kidnaping, robbery, homicide, aggravated
assault, burglary, arson or criminal escape. See State v.
Spencer, 319 N.J. Super. 284, 305-6 (App. Div. 1999) (fact
that the victim might have been dead by the time
penetration occurred does not detract from defendant’s
culpability provided the sexual assault is part of a
continuous transaction); State v. Jones, 308 N.J. Super. 174
(App. Div.), certif. denied 156 N.J. 380 (1998) (that victim
was dead at the time of the sexual penetration did not
prevent conviction for aggravated sexual assault where
victim was alive when the assault began); for a discussion
on fact that murder victim was, after death occurred, also
victim of sexual assault see, 76 A.L.R.4th 1147, 3 (1990);
State v. Cuni, 303 N.J. Super. 584, 597-98 (App. Div.),
certif. denied 152 N.J. 12 (1997) (conviction under this
statute could not stand unless jury found defendant
unlawfully entered victim’s home with intent to commit
non-consensual sexual penetration); State v. Lyles, 291 N.J.
Super. 517 (App. Div. 1996) (kidnaping conviction could
not stand because confinement was incident only to the
sexual assault); State v. Arp, 274 N.J. Super. 379 (Law. Div.
1994) (confinement began lawfully, but later turned
unlawful in the course of aggravated sexual assault); State v.
Trochin, 223 N.J. Super. 530 (App. Div. 1988) (discussing
kidnaping and aggravated sexual assault)N.J.S.A. 2C:14-2a(4) - defendant has or uses a weapon
or any object fashioned in such a way that victim
reasonably believes it is a weapon and threatens by word or
gesture to use the weapon or object. See State v. Martinez,
97 N.J. 567 (1984) (this statute section satisfied when
defendant pointed gun at the victim and then placed gun
under a table close to where sexual assault occurred).N.J.S.A. 2C:14-2a(5) - defendant is aided or abetted by
one or more other persons, and defendant uses physical
force or coercion. See State v. Scherzer, 301 N.J. Super. 363
(App. Div.), certif. denied 151 N.J. 466 (1997) (persuasion
is not coercion or physical force; State must demonstrate