SENATE, No. 638

 

STATE OF NEW JERSEY

 

INTRODUCED FEBRUARY 5, 1996

 

 

By Senator GIRGENTI

 

 

An Act increasing the range of penalties for aggravated sexual assault and amending N.J.S.2C:14-2, N.J.S.2C:43-7 and N.J.S.2C:44-1.

 

    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 foster 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 either of the following circumstances exists:

    (a) The actor uses physical force or coercion, or

    (b) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;

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

    Aggravated sexual assault is a crime of the first degree and upon conviction thereof, a person may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 and 30 years.

    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 4 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 one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;

    (3) 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;

    (4) 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 over the victim; or

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

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

    Sexual assault is a crime of the second degree.

(cf: P.L.1989, c.228, s.3)

 

    2. N.J.S.2C:43-7 is amended to read as follows:

    2C:43-7. Sentence of Imprisonment for Crime; Extended Terms. a. In the cases designated in section 2C:44-3, a person who has been convicted of a crime may be sentenced, and in cases designated in subsection e. of section 2 of P.L.1994, c.130 (C.2C:43-6.4) and in subsection b. of section 2 of P.L.1995, c.126, s.2(C.2C:43-7.1) a person who has been convicted of a crime shall be sentenced to an extended term of imprisonment, as follows:

    (1) In case of aggravated manslaughter sentenced under subsection c. of N.J.S.2C:11-4 or kidnapping when sentenced as a crime of the first degree under paragraph (1) of subsection c. of 2C:13-1 or aggravated sexual assault when sentenced as a crime of the first degree under subsection a. of N.J.S.2C:14-2 for a specific term of years which shall be between 30 years and life imprisonment;

    (2) Except for the crime of murder and except as provided in paragraph (1) of this subsection, in the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 20 years and life imprisonment;

    (3) In the case of a crime of the second degree, for a term which shall be fixed by the court between 10 and 20 years;

    (4) In the case of a crime of the third degree, for a term which shall be fixed by the court between five and 10 years;

    (5) In the case of a crime of the fourth degree pursuant to 2C:43-6c., 2C:44-3d. and 2C:44-3e. for a term of five years, and in the case of a crime of the fourth degree pursuant to 2C:43-6f. for a term which shall be fixed by the court between three and five years.

    b. As part of a sentence for an extended term and notwithstanding the provisions of 2C:43-9, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a. during which the defendant shall not be eligible for parole or a term of 25 years during which time the defendant shall not be eligible for parole where the sentence imposed was life imprisonment; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole.

    c. In the case of a person sentenced to an extended term pursuant to 2C:43-6c., 2C:43-6f. and 2C:44-3d., the court shall impose a sentence within the ranges permitted by 2C:43-7a. (2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall, except as may be specifically provided by N.J.S.2C:43-6f., be fixed at or between one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall not be eligible for parole. Where the sentence imposed is life imprisonment, the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole, except that where the term of life imprisonment is imposed on a person convicted for a violation of N.J.S.2C:35-3, the term of parole ineligibility shall be 30 years.

(cf: P.L.1995, c.126, s.3)

 

    3. N.J.S.2C:44-1 is amended to read as follows:

    2C:44-1. Criteria for Withholding or Imposing Sentence of Imprisonment. a. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:

    (1) The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;

    (2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;

    (3) The risk that the defendant will commit another offense;

    (4) A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;

    (5) There is a substantial likelihood that the defendant is involved in organized criminal activity;

    (6) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;

    (7) The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;

    (8) The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority, or the defendant committed the offense because of the status of the victim as a public servant or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;

    (9) The need for deterring the defendant and others from violating the law;

    (10) The offense involved fraudulent or deceptive practices committed against any department or division of State government;

    (11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;

    (12) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled.

    b. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:

    (1) The defendant's conduct neither caused nor threatened serious harm;

    (2) The defendant did not contemplate that his conduct would cause or threaten serious harm;

    (3) The defendant acted under a strong provocation;

    (4) There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;

    (5) The victim of the defendant's conduct induced or facilitated its commission;

    (6) The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;

    (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;

    (8) The defendant's conduct was the result of circumstances unlikely to recur;

    (9) The character and attitude of the defendant indicate that he is unlikely to commit another offense;

    (10) The defendant is particularly likely to respond affirmatively to probationary treatment;

    (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;

    (12) The willingness of the defendant to cooperate with law enforcement authorities;

    (13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

    c. (1) A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.

    (2) When imposing a sentence of imprisonment the court shall consider the defendant's eligibility for release under the law governing parole, including time credits awarded pursuant to Title 30 of the Revised Statutes, in determining the appropriate term of imprisonment.

    d. Presumption of imprisonment. The court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

    e. The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth in subsection a.

    f. Presumptive Sentences. (1) Except for the crime of murder, unless the preponderance of aggravating or mitigating factors, as set forth in subsections a. and b., weighs in favor of a higher or lower term within the limits provided in N.J.S.2C:43-6, when a court determines that a sentence of imprisonment is warranted, it shall impose sentence as follows:

    (a) To a term of 20 years for aggravated manslaughter [or], kidnapping pursuant to paragraph (1) of subsection c. of N.J.S.2C:13-1, or aggravated sexual assault pursuant to subsection a. of N.J.S.2C:14-2, when the offense constitutes a crime of the first degree;

    (b) Except as provided in paragraph (a) of this subsection to a term of 15 years for a crime of the first degree;

    (c) To a term of seven years for a crime of the second degree;

    (d) To a term of four years for a crime of the third degree; and

    (e) To a term of nine months for a crime of the fourth degree.

    In imposing a minimum term pursuant to 2C:43-6b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

    Unless the preponderance of mitigating factors set forth in subsection b. weighs in favor of a lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(1) shall have a presumptive term of life imprisonment. Unless the preponderance of aggravating and mitigating factors set forth in subsections a. and b. weighs in favor of a higher or lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(2) shall have a presumptive term of 50 years' imprisonment; sentences imposed pursuant to 2C:43-7a.(3) shall have a presumptive term of 15 years' imprisonment; and sentences imposed pursuant to 2C:43-7a.(4) shall have a presumptive term of seven years' imprisonment.

    In imposing a minimum term pursuant to 2C:43-7b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

    (2) In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a noncustodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

    g. Imposition of Noncustodial Sentences in Certain Cases. If the court, in considering the aggravating factors set forth in subsection a., finds the aggravating factor in paragraph a.(2) or a.(12) and does not impose a custodial sentence, the court shall specifically place on the record the mitigating factors which justify the imposition of a noncustodial sentence.

(cf: P.L.1995, c.6, s.2)

 

    4. This act shall take effect on the 90th day after enactment.


STATEMENT

 

    This bill increases the range of penalties available for persons who are convicted of aggravated sexual assault. Currently, aggravated sexual assault is a crime of the first degree. A crime of the first degree is punishable by a term of imprisonment of 10 to 20 years, a fine of up to $100,000, or both. This bill provides that a person convicted of aggravated sexual assault would be sentenced to an ordinary term of imprisonment of between 15 and 30 years. The bill also amends N.J.S.A.2C:44-1 to provide that a presumptive sentence of 20 years would be applicable to persons sentenced for this crime. This is an increase from the ordinary presumptive term applicable for first degree crimes. This provision would make the penalties for aggravated sexual assault comparable to the enhanced penalties available for aggravated manslaughter and certain kidnapping crimes.

    The bill also amends N.J.S.A.2C:43-7 to include aggravated sexual assault with aggravated manslaughter and kidnapping for purposes of the extended terms which may be applicable.

    The Administrative Office of the Courts (AOC) has reported that the average length of sentence for the crime of aggravated sexual assault was approximately 12 years in calendar year 1988. The bill could increase the average length of sentence by as much as five years.

 

 

 

Increases ordinary term of imprisonment for crimes of aggravated sexual assault; provides for presumptive sentence of 20 years.