State of New Jersey in the Interest of M.T.S

Brief Fact Summary. M.T.S. a seventeen-year-old boy was adjudicated delinquent for engaging in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaging in actual sexual penetration of the girl without her consent. There was no evidence or suggestion that the M.T.S. used any unusual or extra force or threats against the girl.

Synopsis of Rule of Law. Sexual penetration by “physical force” encompasses any sexual penetration accomplished without the affirmative and freely given permission of the victim.

Facts. Fifteen-year-old C.G. lived with her mother, three siblings and several other people, including M.T.S. and his girlfriend. M.T.S. slept on the couch, and C.G. had her own bedroom. At approximately 1:30 a.m. on the night in question, M.T.S. visited C.G.’s bedroom as she was getting out of bed to use the bathroom. The teenagers’ accounts of the incident differed substantially and the trial court did not credit fully either teenager’s testimony. M.T.S. recounted a version of the events wherein the two teenagers were kissing and the intercourse was consensual. However, C.G. claimed that no part of the encounter was consensual, but rather, M.T.S. penetrated her while she was sleeping. The trial court concluded that the victim had consented to kissing and heavy petting, but she had not consented to the sexual intercourse. M.T.S. was therefore adjudicated delinquent.

Issue. Does nonconsensual sexual intercourse constitute sexual assault even if it is not accomplished by some level of force?

Held. Yes. While the New Jersey statute defines sexual assault as the commission of sexual penetration of another person through the use of physical force or coercion, physical force is not defined by the statute. Therefore, the New Jersey Supreme Court interpreted the statute to refer to any nonconsensual sexual penetration. This interpretation adequately reflects the legislature’s desire to eliminate the consideration of whether the victim resisted.

Discussion. Compare this case to [Commonwealth v. Berkowitz.] Clearly, the holdings are not entirely consistent, but each court is interpreting its own state statute. Here, the New Jersey Supreme Court held that the lack of consent was sufficient to satisfy the force requirement. However, the Pennsylvania Superior Court in Berkowitz held that an extra show of force was required beyond accomplishing sexual intercourse without the victim’s consent.