SENATE, No. 2924

STATE OF NEW JERSEY

218th LEGISLATURE

 

INTRODUCED SEPTEMBER 17, 2018

 


 

Sponsored by:

Senator  LINDA R. GREENSTEIN

District 14 (Mercer and Middlesex)

 

 

 

 

SYNOPSIS

     Amends certain provisions of sexual assault statute to clarify elements necessary for conviction.

 

CURRENT VERSION OF TEXT

     As introduced.

 


An Act concerning 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] the actor 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, carjacking, kidnapping, homicide, aggravated assault on [another] a person other than the victim, 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] commits the act using coercion or without the victim’s affirmative and freely-given permission;

     (6)   The actor [uses physical force or] commits the act using coercion or without the victim’s affirmative and freely-given permission and severe personal injury is sustained by the victim;

     (7)   The victim, at the time of sexual penetration, is one whom the actor knew or should have known was:

     (a)   physically helpless or incapacitated[,] ;

     (b)   intellectually or mentally incapacitated[,] ; or

     (c)   had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the distinctively sexual nature of [his] the conduct, including, but not limited to, being incapable of providing consent , or incapable of understanding or exercising the right to refuse to engage in the conduct.

     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] commits the act using coercion or without the victim’s affirmative and freely-given permission, 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.

     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 amends certain provisions of the sexual assault statute to make it consistent with current relevant case law as set forth in the instructions presented to the jury during the course of criminal proceedings.  The bill is based on recommendations of the New Jersey Law Revision Commission (NJLRC) pursuant to its 2014 final report relating to sexual offenses. 

     The bill replaces the term “physical force” in accordance with the New Jersey Supreme Court’s holding in State in Interest of M.T.S., 129 N.J. 422 (1992), which holds that the only requirement for a conviction under the sexual assault statute is proof beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the victim.  This amendment provides clarity by incorporating the holding into the statute.  As discussed by the NJLRC in its report, since the M.T.S. decision, courts that consider sexual assault cases need to use both statute and the court decision to determine the elements necessary for conviction.  The bill also amends the statute to articulate the New Jersey Supreme Court’s determination, as set forth in State v. Olivio, 123 N.J. 550 (1991), that a person is “mentally defective” within the meaning of the statute if, at the time of the sexual penetration, the person is incapable of understanding the distinctively sexual nature of the conduct and is incapable of understanding or exercising the right to refuse to engage in sexual conduct.

     In addition, the bill amends paragraph (3) of subsection a. of the statute to clarify that the phrase “aggravated assault on another” refers to a person other than the victim, and adds the crime of carjacking as an aggravating offense.  These changes are based on the New Jersey Supreme Court opinions in State v. Rangel, 213 N.J. 500 (2013), and State v. Drury, 190 N.J. 197 (2007).

     Finally, the bill replaces gender-specific language with gender-neutral terms.