Crimes involving Aggravated Sexual Assault, found under Chapter 14 of New Jersey's Criminal Code, result in significant penalties for offenders in the "Garden State."
Recently, a Butler resident was charged with sexually assaulting a 14-year-old male family member over a substantial period of time. In addition to various charges related to endangering the welfare of a child, the man was also charged with one count of second-degree aggravated sexual assault for the alleged attacks. This article seeks to explain the crime of aggravated sexual assault in terms of the levels of proof required for a conviction under this offense, as well as its punishment. In particular, the discussion will include instances where the victim is at least 13 but less than 16-years-old and there is a close relationship between the accused and the victim.
Aggravated Sexual Assault, N.J.S.A. 2C:14-2(2): Proving the Offense
In order to convict an individual of Aggravated Sexual Assault where the victim is at least 13 but less than 16 years of age, the State must prove beyond a reasonable doubt:
- The actor committed an act of sexual penetration with the victim; and
- That at the time of penetration, the victim was at least thirteen years old but less than sixteen; and
- The actor is related to the victim by blood or affinity to the third degree; or
- The actor has supervisory or disciplinary power over the victim because of his legal, professional, or occupational status, or
- The actor is a resource family parent, guardian, or stands in loco parentis within the household.
The First Element
The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual penetration with the victim.
According to the New Jersey Statute, vaginal intercourse, cunnilingus, fellatio or anal intercourse or insertion of the hand, finger or object into the anus or vagina, either by the defendant or by another person upon the defendant's instruction, constitute(s) "sexual penetration." Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.
The definitions of N.J.S.A. 2C:14-2 provide that "vaginal intercourse" is the penetration of the vagina, or where appropriate, of the space between the labia majora or outer lips of the vulva. The definition of "cunnilingus" is oral contact with the female sex organ. The definition of "fellatio" is oral contact with the male sexual organ. The definition of "anal intercourse" is penetration, however slight, into the anus.
Notably, the first element of the offense requires a knowing state of mind attributed to the defendant. By definition, a person acts knowingly with respect to the nature of his conduct if he is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he is aware that it is practically certain that the conduct will cause a result. As a result, if the State can prove a defendant was aware that he was committing an act of penetration, the first element of the offense is satisfied. While there are some exceptions to this state of mind with notions of consent and forced sexual acts, because of the victim's age in this offense, these points are inapplicable.
The Second Element
The second element that the State must prove beyond a reasonable doubt is that at the time of the penetration, the victim was at least 13 years old but less than 16 years old.
One of the most important points to consider when evaluating this element of the offense is the defendant's knowledge of the victim's age. A defendant's claim that he did not know, nor had any reason to know, that the victim was under 16 years old is not a defense as this is a strict liability condition in the statute. The State must prove only the age of the victim at the time of the offense beyond a reasonable doubt. It does not have to prove that defendant knew or reasonably should have known that the victim was between 13 and 16 years old.
While the "knee-jerk" reaction is to consider the defense of lack of knowledge of the victim's age absurd in support of strict liability, there are cases where this standard is applied in a fashion that violates modern sensibilities. Consider a case where a college-aged man approaches a young woman at a bar. The woman is drinking beverages containing alcohol. After an evening of dancing and conversation, the two individuals engage in an act of sexual penetration. Unbeknownst to the college-aged man, the woman was one day removed from being sixteen and used a fake I.D. to gain access and drink. Under the strict liability that this statute imposes, the man would be found guilty of the second element of the offense.
The Third Element
The third element of this offense sets forth some relationships where sexual assaults may occur that are considered particularly heinous, and therefore, result in more serious penalties as the crime will be charged as a second-degree offense.
To show such a relationship exists, the State must demonstrate:
- The defendant is related to the victim by blood or affinity in the first, second, or third degree; or
- Defendant had supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status. In determining whether defendant had any of these powers over a victim, a jury evaluates the entire context of the relationship between the defendant and the victim. The jury must consider the nature of the relationship between the defendant and the victim and whether the relationship was so unequal as to vest power in the defendant. Common factors for consideration include whether there was a significant disparity in ages and/or maturity level between the defendant and victim, whether the defendant offered advice and guidance to the victim on questions and issues outside the defendant's role as a superior and the power or ability of the defendant to affect the victim's future participation or success; or
- Defendant is a resource family parent, guardian, or stands in loco parentis within the household of the victim. "Resource family parent" means any person other than a natural or adoptive parent with whom a child in the care, custody or guardianship of the Department of Children and Families is placed by the department, or with its approval, for care. Interestingly, this also includes any person with whom a child is placed by the Division of Youth and Family Services for the purpose of adoption until the adoption is finalized.
An in loco parentis relationship occurs when a person acts as a temporary guardian or caregiver of a child, taking on all or some of the responsibilities of a parent. Factors that accompany a determination of this relationship include: whether a defendant took on the responsibility to maintain, rear and educate the victim, as well as the duties of supervision, care and rehabilitation of victim.
If the State can prove that a defendant knowingly committed an act of sexual penetration, with a victim who was at least 13 but younger than 16, within one of these aforementioned relationships, then the defendant will be found guilty under N.J.S.A. 2C:14-2(2) for aggravated sexual assault in the second-degree.
Aggravated Sexual Assault, N.J.S.A. 2C:14-2(2): Punishing the Offense
The New Jersey Criminal Code provides that this offense of aggravated sexual assault constitutes a crime of the second degree. On a second degree crime, there is a presumption of incarceration with a sentence of jail time in the range of five to ten years.
New Jersey's stance against sexual assaults involving minors is strong. Essentially, the State need only prove knowledge in one element of the offense, that of the sexual penetration. Knowledge regarding age of the victim on the part of the defendant is not a factor to be considered at all in determining guilt or innocence. Furthermore, the wide ranging relationships that enhance the degree of the crime, including familial as well as supervisory roles, indicate that the state seeks to greatly deter those that would commit an offense in violation of N.J.S.A. 2C:14-2(2) with significant periods of incarceration.
By: Anthony N. Palumbo, Esq.; New Jersey Criminal Defense Attorney