By Anthony N. Palumbo. Esq.; New Jersey Criminal Defense Attorney
In a case decided in July, the New Jersey Appellate Division upheld an order sentencing two 14 year old boys to lifetime registration as sex offenders after they were convicted for holding down two younger boys and sitting on their faces with their buttocks bared. Although the older boys claimed that the incident was just a prank, the court found that their conduct fit within the legal definition of fourth degree criminal sexual contact. The court concluded its decision by remanding the boys' cases in order to address trial and procedural errors, but the decision will have broad ramifications throughout the state regardless of how it is ultimately resolved. This article is intended to provide an overview of the case and a discussion of some of those ramifications.
Defining "sexual contact"
The crux of the case was whether the boys engaged in conduct that would have constituted criminal sexual contact if they were adults. Under the New Jersey Code of Criminal Justice, "sexual contact" is defined as:
an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.
The court ruled that the facts of the case met all of the elements of this definition. The boys intentionally touched the victims with their bare buttocks, which qualified as "intimate parts," and they did so with a purpose to degrade and humiliate them. The court emphasized that this motivation was enough, as the definition could be fulfilled based on an intent to degrade or humiliate or an intent to arouse or gratify sexual urges.
The court contrasted the boys' behavior in this case to an earlier case where a teenage boy was accused of criminal sexual contact after intentionally touching the buttocks of a female classmate. The charges in that case were eventually dismissed based on evidence that the touching occurred in a classroom full of people and caused only brief embarrassment for the girl. In this case, however, the boys were egged on by their friends to sit on the younger boys' faces after a protracted bullying session that also involved making them do push-ups, threatening to beat them up, and ordering them to put their faces into the water at the riverfront. As the court explained, "the cases before us do not involve an isolated incident of one classmate inappropriately slapping another classmate on the buttocks causing a mere fleeting moment of embarrassment to the victim...." Rather, "[w]hat occurred here were deliberate acts of extreme bullying, carried out by [the boys] with a clear intent to degrade and humiliate the two younger and physically weaker victims, using unmistakably sexual connotations to accentuate the message."
Sex offender registration requirements under Megan's Law
In New Jersey, most sex crimes fall within the scope of Megan's Law, which requires convicted offenders to be listed on the state's sex offender registry. Criminal sexual contact is among the crimes subject to Megan's Law when, as in this case, the victim is a minor.
Complying with sex offender registration requirements can be one of the most difficult parts of a sex crime conviction because registration can be very public and can continue long after the offense was committed, or even permanently. Registered sex offenders often face discrimination in housing, employment, and other aspects of day-to-day life, and even though sex offender classification can be especially difficult for juveniles, there are no exceptions or reduced requirements for young adults who are 13 years old or older.
Depending on the nature of the crime and the likelihood of recidivism, convicted sex offenders are classified as either Tier 1 (low risk), Tier 2 (moderate risk), or Tier 3 (high risk), with the different levels requiring notification to different entities. Only law enforcement agencies are notified of sex offenders registered as Tier 1, while a Tier 2 classification results in additional notifications to schools, camps, and community organizations. For Tier 3 sex offenders, all of the above parties are notified and the information is also posted on the internet so that members of the public can view it. The information required to be submitted typically includes a photo of the offender and a description of his offense(s) as well as his name, address, age, race, gender, height, weight, hair and eye color, distinguishing scars or tattoos, place of employment, and vehicle identification information.
The sex offender registration requirements imposed under Megan's Law are generally lifetime requirements. They can only be terminated by obtaining a court order with findings that the registrant is unlikely to pose a threat to others and that he has not committed an offense within 15 years following the initial conviction or release from incarceration, whichever is later. Accordingly, the boys in this case (who were not sentenced to any period of confinement) will continue to be classified as sex offenders at least until they are 29 years old.
Trial errors requiring remands
Although the court ruled that the boys' conduct qualified as criminal sexual contact, each of the boys' cases had to be sent back to the lower court because of trial and procedural errors, giving them another chance to reverse their convictions and avoid registration under Megan's Law.
The first boy alleged that his conviction was improper due to ineffective legal counsel. Specifically, his trial attorney admitted that she "underestimated and misunderstood the nature and complexity of the charges" and failed to adequately investigate the evidence. Had she done so, she would have discovered flaws suggesting that the victims' statements were unreliable. This could have rendered their statements inadmissible, which in turn might have altered the outcome of the case. As a result, the court determined that an evidentiary hearing was necessary to allow the boy a chance to prove that, but for the ineffective assistance of his attorney, he would not have been convicted.
The second boy, unlike the first, pled guilty to the charges and did not go to trial. He argued, however, that he was entitled to withdraw his guilty plea because the judge failed to directly apprise him of the consequences of sex offender registration during his plea hearing. The court found that this lapse could very well have rendered his plea involuntary, and remanded for further consideration of how this had affected his decision to plead guilty.
One of the consequences of this case is that parents, teachers, and law enforcement officers are likely to become more vigilant for bullying activities that could be prosecuted as sexual offenses, and juveniles may begin to find themselves facing sex offender registration requirements for youthful indiscretions that were once considered fairly common, albeit unacceptable, childhood behavior. If your child is charged with criminal sexual contact or another sexual offense in this type of situation, contact an experienced New Jersey criminal defense lawyer as soon as possible. A knowledgeable attorney will be able to help you to understand the gravity of your child's case and the best possible way forward.