Citation. 129 N.J. 422, 609 A.2d 1266, 1992 N.J. 420,
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Brief Fact Summary.
Defendant was charged with sexual assault after having engaged in sexual penetration of a girl with whom he was engaged in consensual kissing and heavy petting but whom had not consented to penetration. There was no evidence that Defendant used force other than that normally used to effect penetration.
Synopsis of Rule of Law.
Any act of sexual penetration engaged in without the affirmative and freely given permission of the victim to the specific act of penetration constitutes sexual assault.
Defendant, a seventeen-year-old boy, was engaged in consensual kissing and heavy petting with the alleged victim and during the encounter penetrated the girl without her consent. There was no evidence that Defendant used any extra force or threats in order to penetrate the alleged victim. However, the trial court found Defendant guilty of sexual assault. The Appellate division reversed on the ground that non-consensual penetration, absent the use of more force that that necessary to accomplish penetration, does not constitute sexual assault. The New Jersey Supreme Court grated the State’s petition for certification.
With regard to the crime of rape, is the element in rape of physical force met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that act?
Yes. Judgment of the Appellate Division reversed.
The New Jersey Supreme Court holds that any act of sexual penetration engaged in without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes sexual assault, as it satisfies the definition of physical force under New Jersey law.
Permission can be found in words or action that, when viewed in the light the circumstances, would demonstrate consent to a reasonable person. The victim does not have to demonstrate expressed non-consent or resistance.
This holding is based on the legislature’s purpose in enacting the law regarding rape and the court says that the legislature would not have wanted to decriminalize unauthorized sexual intrusions on the body of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself.
This case brings up the policy issue of whether or not extrinsic force should be a required in proving rape.