ASSEMBLY, No. 3908

STATE OF NEW JERSEY

216th LEGISLATURE

INTRODUCED DECEMBER 4, 2014

 


 

Sponsored by:

Assemblyman  TROY SINGLETON

District 7 (Burlington)

Assemblywoman  GABRIELA M. MOSQUERA

District 4 (Camden and Gloucester)

Assemblywoman  PAMELA R. LAMPITT

District 6 (Burlington and Camden)

 

 

 

 

SYNOPSIS

     Establishes crime of sexual assault by fraud.

 

CURRENT VERSION OF TEXT

     As introduced.

 


An Act concerning aggravated sexual assault and sexual assault and amending N.J.S.2C:14-2.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2C:14-2 is amended to read as follows:

     2C:14-2.  Sexual assault. a. 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:

     (1)   The victim is less than 13 years old;

     (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 resource family parent, a guardian, or stands in loco parentis within the household;

     (3)   The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

     (4)   The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

     (5)   The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

     (6)   The actor uses physical force or coercion and severe personal injury is sustained by the victim;

     (7)   The victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent;

     (8)   The act is committed through fraud whereby the victim submits to the act under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief.

     Aggravated sexual assault is a crime of the first degree.

     Except as otherwise provided in subsection d. of this section, a person convicted under paragraph (1) of this subsection shall be sentenced to a specific term of years which shall be fixed by the court and shall be between 25 years and life imprisonment of which the person shall serve 25 years before being eligible for parole, unless a longer term of parole ineligibility is otherwise provided pursuant to this Title.

     b.    An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.

     c.     An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

     (1)   The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

     (2)   The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

     (3)   The victim is at least 16 but less than 18 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 of any nature or in any capacity over the victim; or

     (c)   The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

     (4)   The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim;

     (5) The act was committed by the actor through fraud other than the fraud described in subsection a. of this section.

     Nothing in P.L.    , c.    (C.        ) (pending before the Legislature as this bill) shall preclude an assignment judge from dismissing a prosecution under this paragraph if the assignment judge determines, pursuant to N.J.S.2C:2-11, the conduct charged to be a de minimus infraction.

     Sexual assault is a crime of the second degree.

     d.    Notwithstanding the provisions of subsection a. of this section, where a defendant is charged with a violation under paragraph (1) of subsection a. of this section, the prosecutor, in consideration of the interests of the victim, may offer a negotiated plea agreement in which the defendant would be sentenced to a specific term of imprisonment of not less than 15 years, during which the defendant shall not be eligible for parole.  In such event, the court may accept the negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term of imprisonment or parole or a lesser period of parole ineligibility than that expressly provided in the plea agreement. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding a negotiated reduction in the term of imprisonment and period of parole ineligibility set forth in subsection a. of this section.

(cf: P.L. 2014, c.7, s.1)

 

     2.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would expand the penalties for aggravated sexual assault to include an act of sexual penetration that is committed by fraud.

     A number of states have enacted statutes which criminalize sexual penetration when accomplished by an actor who fraudulently obtains the consent of the victim. In these cases, the victim’s consent is obtained by the actor’s misrepresentation as to the purpose of the sexual act, or by the actor misrepresenting his identity. However, in New Jersey, sexual penetration or sexual contact accomplished through fraud is not currently a crime.

     In the sponsor’s view, consent to sexual penetration that is fraudulently obtained is negated, resulting in non-consensual sexual penetration.  Under the bill, a person who commits an act of sexual penetration by fraud whereby the victim submits to the act under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief is guilty of the first degree crime of aggravated sexual assault. A person who commits an act of sexual penetration by fraud in a manner other than described in subsection a. of the bill is guilty of the second degree crime of sexual assault.

     It is the sponsor’s intent to provide a remedy to victims who suffer severe psychological harm.  Prosecution of de minimus actions in which there is no such resulting harm to the victim would be contrary to the sponsor’s intent.  In order to prevent prosecutions of de minimus actions, the bill explicitly provides that nothing in the bill shall preclude an assignment judge from dismissing a prosecution under paragraph (5) of subsection b. of the bill if the assignment judge determines, pursuant to N.J.S.2C:2-11, the conduct charged to be a de minimus infraction.

     N.J.S.2C:2-11 provides:

     The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant's conduct:

     a.  Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of  the law defining the offense;

     b.  Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

     c.  Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense.  The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard.  The prosecutor shall have a right to appeal any such dismissal.

     Pursuant to N.J.S.2C:14-2, a person who commits an unlawful act of sexual penetration or sexual contact is guilty of aggravated sexual assault or sexual assault. Whether the crime will be the first degree crime of aggravated sexual assault or the second degree crime of sexual assault depends on the circumstances surrounding the act.  These circumstances include, but are not limited to, any use of force by the defendant; the degree of injury suffered by the victim; whether the defendant and the victim had a family relationship or supervisory relationship; the victim’s age, if the victim was under age 18; and whether the act was committed during the commission of another crime.

     A person who commits aggravated sexual assault is guilty of a crime of the first degree punishable by a term of imprisonment of 10 to 20 years and a fine of up to $200,000 or both.  If committed against a victim who is less than 13 years old, the crime of aggravated sexual assault is punishable by a sentence of not less than 25 years and up to a term of life imprisonment, or a negotiated plea agreement for not less than 15 years. The person must serve at least the minimum number of specified years of the sentence before being eligible for parole.  Sexual assault is a second degree crime punishable by a term of imprisonment of five to 10 years and a fine of up to $150,000.

     In New Jersey, the use of force is not required for a conviction of aggravated sexual assault. A person may be found guilty of aggravated sexual assault in the absence of force if an act of sexual penetration is committed against a victim whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

     Pursuant to subsection i. of N.J.S.2C:14-1, “mentally incapacitated” refers to the condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling his conduct.