D and his girlfriend were living with 17 year old victim and her family.
Victim testified that she woke up on the morning with D inside her. Victim slapped D and told him to get off of her, and he did.
D testified that he and victim had been kissing and necking for 3 days prior to the offense and had discussed having sex.
D said that he and victim made out and fooled around on the night in question and then he began having sex with her. After a few pumps, victim protested and D got off of her.
The trial court concluded that victim had consented to the make-out/fooling around session and that victim was not asleep at the time of penetration.
Sexual assault is the commission of sexual penetration with another person with the use of physical force or coercion.
Trial court found D guilty of sexual assault.
Appellate court reversed, D not guilty of sexual assault.
NJ Supreme Court reversed, D guilty of sexual assault.
What is the definition of "physical force" as used in the sexual assault statute?
"Physical force" as used in the sexual assault statute is any act of sexual penetration engaged in by the D without the affirmative and freely-given permission of the victim to the specific act of penetration.
The plain meaning of physical force is not obvious, so the legislative intent must be examined.
The circumstances surrounding the passage of the current law reveal that it was conceived as a reform measure. Proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime.
An interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed by an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.
Permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred from acts or statements reasonably viewed in light of the surrounding circumstances.
Since the trial court concluded that the victim had not expressed consent to the act of intercourse either through words or actions, then the offense is committed.
There is reasonable support for the trial court's disposition.