Physical force not required for sexual contact
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
September 10, 2010 FILLIN
"Date of Publication" *
MERGEFORMAT
APPELLATE DIVISION
Plaintiff-Respondent,
v.
PETER TRIESTMAN,
Defendant-Appellant.
SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
DOCKET NO.
A-6408-08T4
__________________________
September 10, 2010
Argued: January 27,
2010 – Decided:
Before Judges Cuff, C.L. Miniman and Waugh.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 08-12-03550.
Kevin C. Orr argued the cause for appellant.
Debra G. Simms, Assistant Prosecutor, argued the cause for
respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms.
Simms, on the brief).
Alison Perrone argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey.
The opinion of the court was delivered by
MINIMAN, J.A.D.
Defendant Peter Triestman appeals on leave granted from an
indictment charging him with fourth-degree criminal sexual contact. We now reverse and remand for further
proceedings consistent with this opinion.
I.
Defendant and
N.P. were both employed at a furniture store in Newark. Defendant was N.P.s boss. According to an incident report filed with
the Newark Police Department, defendant asked N.P. to prepare a bed at the
store so he could place pictures of the bed online to sell it. On May 22, 2008, defendant asked N.P. to
examine the bed with him in an upstairs room.
Once upstairs, defendant and N.P. began changing the bedding. While doing so, defendant told N.P. that the
bed would look better with her laying on it naked. While saying this, defendant moved closer to
N.P., placed his left hand on her shoulder, put his right hand on her breast
over her clothes, and tried to kiss her.
N.P. pulled away from defendant and walked away. She gathered her belongings, punched out her
time card, and told her mother, who also worked in the store, that she was
leaving. Defendant followed N.P. before
she left, apologized for touching her, and told her not to tell anyone.
After leaving,
N.P. informed her sister and father about what had happened. She and her sister then retrieved their
mother from the store. Later that same
evening, defendant called N.P.s home and informed her and her mother that they
were fired. N.P. then filed an incident
report. Defendant was subsequently
arrested on June 17, 2008——five days after the prosecutor authorized the police
to charge him with one count of criminal sexual contact.
On September
23, 2008, a grand-jury orientation was held in Newark. The prosecutor read the definitions and
provisions of N.J.S.A. 2C:14-1 and N.J.S.A. 2C:13-5 to the grand jury. The prosecutor then read N.J.S.A. 2C:14-2,
which outlines sexual-assault offenses.
The prosecutor next recited N.J.S.A. 2C:14-3, which defines the elements
of criminal sexual contact. Finally, the
prosecutor read the statute on criminal restraint, N.J.S.A. 2C:13-2.
The grand-jury hearing for this case was held on December 2,
2008. The prosecutor began by
saying: "By way of complaint, the
defendant has been charged with one count of fourth[-]degree criminal sexual
contact and thats in violation of 2C:14-3(b).
Does anyone need me to read the law?
Okay. The State is going to be
calling [N.P.]." The grand jury
then heard the testimony of the alleged victim, including her responses to
various questions asked by the jurors.
N.P.s testimony largely mirrored her account in the incident report,
except that she testified that defendant, before he moved closer to N.P. and
made his comment about her lying on the bed naked, first commented that the bed
would look much better if she laid on it. She also testified that she exclaimed
"Peter!" when defendant tried to kiss her. The prosecutor concluded the hearing by
asking the grand jurors to consider the charge of fourth-degree criminal sexual
contact. Essex County Indictment No.
2008-12-3550 was returned on December 9, 2008, charging defendant with
fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b.[1]
On or about May 4, 2009, defendant filed a notice of motion
seeking to dismiss the indictment.[2]
Defendant argued that the indictment should be dismissed because the
State failed to charge the grand jury with the statutory definition of the
alleged crime and the grand-jury presentation was devoid of any evidence that
physical force was used by defendant in excess of the minimum physical contact
required to achieve criminal sexual contact.
After briefing and oral argument, the judge placed his fact-findings and
legal conclusions on the record and denied the motion on July 14, 2009.
First, the judge found that the State charged the jury,
during the sexual-assault and rape analysis orientation on September 23, 2008,
with the elements of fourth-degree criminal sexual contact under N.J.S.A.
2C:14-3b. He also accepted the States
representation that the prosecutor charged the grand jury with the
circumstances under N.J.S.A. 2C:14-2c(1) through (4), which constitute one of
the elements of fourth-degree criminal sexual contact, although the judge
observed that it was unclear whether N.J.S.A. 2C:14-2c was in fact
charged. Thus, he rejected defendants
claim that the State failed to charge the grand jury with the statutory definition
of the alleged crime. He also did not
find it necessary to recharge when the facts were presented to the grand jury
on December 2, 2008.
Second, on the alleged absence of any physical force, the
judge relied on State v. M.T.S., 129 N.J. 422 (1992), and the model charge on
criminal sexual contact to conclude "that the simple act of touching the
breast itself, the unwanted criminal sexual contact, no further additional
force is necessary to meet the element of physical force in the crime of
criminal sexual contact." He thus
denied the motion to dismiss the indictment.
On August 3, 2009, defendant filed a motion for leave to
appeal, which we granted on August 27, 2009.
On September 14, 2009, the Law Division granted defendants motion for a
stay of the proceedings pending appeal.
On October 23, 2009, we granted the motion of the Association of
Criminal Defense Lawyers of New Jersey (ACDL-NJ) for leave to appear as amicus
curiae and participate in oral argument.
II.
Defendant
raises the following issues for our consideration:
POINT I - THE STATE
VIOLATED DEFENDANTS CONSTITUTIONAL RIGHT TO A GRAND JURY BY FAILING TO INSTRUCT
IT AS TO THE LAW OF CRIMINAL SEXUAL CONTACT.
A. THE PROSECUTOR
HAS THE DUTY TO CHARGE THE GRAND JURY AS TO THE SPECIFIC OFFENSE TO BE
CONSIDERED.
B. THE PROSECUTOR
FAILED TO ESTABLISH BY COMPETENT EVIDENCE THAT THE GRAND JURY WAS CHARGED AS TO
THE LAW OF CRIMINAL SEXUAL CONTACT.
C. THE PROSECUTORS
DUTY TO CHARGE THE GRAND JURY IN DEFENDANTS CASE IS NOT SATISFIED BY PROVIDING
COMBINED READINGS ON THE LAWS OF AGGRAVATED SEXUAL ASSAULT, CRIMINAL COERCION,
CRIMINAL SEXUAL CONTACT AND CRIMINAL RESTRAINT SOME SEVENTY-SEVEN DAYS EARLIER.
POINT II - THE TRIAL COURT ERRED IN FAILING TO DISMISS THE
INDICTMENT WHERE, AS HERE, THE STATE FAILED TO PRESENT EVIDENCE OF PHYSICAL
FORCE IN ADDITION TO SEXUAL CONTACT.
A. THE ELEMENT OF
"SEXUAL CONTACT" REQUIRES SOME FORCE.
B. THE SECOND
ELEMENT OF CRIMINAL SEXUAL CONTACT REQUIRES ADDITIONAL FORCE.
C. THE LEGISLATURE
DID NOT INTEND TO EQUATE PHYSICAL FORCE WITH AN ABSENCE OF CONSENT, AND ANY
SUCH INTERPRETATION CREATES STATUTORY DISHARMONY AND CAUSES INAPPOSITE RESULTS.
(1) THE ERRONEOUS INTERPRETATION CAUSES INCONGRUENCE BETWEEN
PARAGRAPH (c)(1) AND PARAGRAPHS (c)(3) AND (4).
(2) THE ERRONEOUS
INTERPRETATION CAUSES INTERNAL INCONGRUENCE WITHIN PARAGRAPH (c)(1).
(3) THE ERRONEOUS INTERPRETATION CAUSES INCONGRUENCE BETWEEN
THE CRIMINAL SEXUAL CONTACT AND HARASSMENT STATUTES.
An indictment
should only be dismissed on the clearest and plainest grounds, where it is
manifestly deficient or palpably defective.
State v. Hogan, 144 N.J. 216, 228-29 (1996). As a result, a prosecutors decision on how to
instruct a grand jury will constitute grounds for challenging an indictment
only in exceptional cases. State v.
Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635
(2001). An "indictment should not
be dismissed unless the prosecutors error was clearly capable of producing an
unjust result. This standard can be
satisfied by showing that the grand jury would have reached a different result
but for the prosecutors error."
Ibid.
A decision on whether to dismiss an indictment is left to
the sound discretion of the trial judge and will be reversed only for an abuse
of discretion. State v. Warmbrun, 277
N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). A trial court decision will constitute an
abuse of discretion where "the decision [was] made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis." United States
v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor,
171 N.J. 561, 571 (2002)).
III.
Defendant first argues that his constitutional right to a
grand jury was violated because the prosecutor failed to instruct the grand
jury as to the law of criminal sexual contact.
Defendant presents three points in support of this argument. First, he contends that the prosecutor has a
duty to charge the grand jury as to the specific offense to be considered, and
the prosecutor gave "no instructions whatsoever" to the grand
jury. In this regard, defendant seeks
model standards for prosecutors to follow in charging grand juries.
Second, defendant argues that the prosecutor failed to
present any competent evidence that the grand jury was charged as to the law of
criminal sexual contact because the prosecutor did not provide a copy of the
grand-jury orientation transcript to the trial court. In his reply brief, defendant continues his
objection on this point despite the production of the transcript. According to defendant, the trial court
abused its discretion in concluding that the grand jury was properly instructed
on the law based on the prosecutors statements.
Finally, defendant argues that even if the transcript of the
orientation is considered, the record nevertheless fails to satisfy the States
burden to "plainly spell out" the governing law because a one-time
reading of the criminal code fails to pass constitutional scrutiny. As a corollary, defendant argues that an
eleven-week delay between the reading of the statutes to the grand jury and the
States presentation of the charges against him warrants dismissal. Defendant explains, "The grand jury could
not possibly be expected to recall the complex particulars of the law of
criminal sexual contact provided to it eleven weeks earlier during a single
reading of all of the laws of sexual offenses." Defendant urges that the prosecutor
"obfuscated the law of criminal sexual contact by giving a hodgepodge
reading of all New Jersey sexual offense laws some seventy-seven days before
the actual presentation of [the] facts on defendants matter." Defendant contends that the grand jury was
never informed it had a right to request a recharge. Defendant therefore seeks dismissal of the
indictment as violative of his state constitutional rights.
The State asserts that the grand jury was properly
instructed on the law of criminal sexual contact. The State argues that the grand-jury hearing
was conducted with the "utmost fairness" because the grand jury was
"fully appraised of all the elements of the charge available for its
consideration." The State contends
that the prosecutor had discretion to present the charges as she saw fit, and
that the record, including the prosecutors statements to the trial judge and
the grand-jury orientation transcript, clearly shows the prosecutor properly
instructed the grand jury on the law of criminal sexual contact. The State also avers that defendants argument
regarding the grand jurors inability to remember the applicable law is
"pure speculation" and should be disregarded as such. According to the State, there is no constitutional
violation where, as here, the grand jurors are given the opportunity to be
recharged and informed of this right and then decline the offer. Finally, the State argues that the
eleven-week period between the initial charge and presentation "is of no
moment."
The New Jersey Constitution guarantees that "[n]o
person shall be held to answer for a criminal offense, unless on the
presentment or indictment of a grand jury . . . ." N.J. Const. art. I, ¶ 8. It is the duty of the grand jury to bring to
trial individuals who are probably guilty and to clear the innocent of baseless
charges. In re Grand Jury Appearance
Request by Loigman, 183 N.J. 133, 138 (2005) (citation omitted). The grand jury "stand[s] between the
defendant and the power of the State, protecting the defendant from unfounded
prosecutions." Ibid. (quoting State
v. Fortin, 178 N.J. 540, 638 (2004)).
Article I, Paragraph 8, "is a constitutional protection that
enhances the integrity of the charging process." Id. at 139.
"[T]he grand jurys core purpose is to determine whether the State has
established a prima facie case that a crime has been committed and that the
accused has committed it, and it stands as the primary security to the innocent
against hasty, malicious and oppressive persecution." State v. Francis, 191 N.J. 571, 586 (2007)
(quoting Hogan, supra, 144 N.J. at 227-28 (internal quotations omitted)).
Grand-jury proceedings are presumed valid, and defendants
bear the burden of proving prosecutorial error.
Id. at 587 (citations omitted).
"Grand jury proceedings are largely controlled by prosecutors, who
are charged to use all reasonable and lawful diligence for the detection,
arrest, indictment and conviction of offenders against the laws." Ibid. (quoting N.J.S.A. 2A:158-5 and citing
Loigman, supra, 183 N.J. at 144); see also State v. T.C., 347 N.J. Super. 219,
229 (App. Div. 2002) (recognizing a prosecutors discretion in deciding whether
to prosecute and what charges to bring before a grand jury), certif. denied,
177 N.J. 222 (2003). Imbued with
principles of fairness by the Rules of Professional Conduct and case law, a
prosecutor has the primary duty of ensuring that justice is done and may not
use improper methods calculated to produce a wrongful conviction. Loigman, supra, 183 N.J. at 144. A prosecutor is obligated to charge the grand
jury as to the elements of specific offenses and specific exculpatory
defenses. Pressler, Current N.J. Court
Rules, comment 1.2 on R. 3:6-3 (2010).
Incomplete or imprecise grand-jury instructions do not
necessarily warrant dismissal of an indictment; rather, the instructions must
be "blatantly wrong." Hogan,
supra, 336 N.J. Super. at 344; State v. Laws, 262 N.J. Super. 551, 562 (App.
Div.), certif. denied, 134 N.J. 475 (1993).
In short, an indictment will fail where a prosecutors instructions to
the grand jury were misleading or an incorrect statement of law. State v. Ball, 268 N.J. Super. 72, 119-20
(App. Div. 1993), aff’d, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116
S. Ct. 779, 133 L. Ed. 2d 731 (1996); Laws, supra, 262 N.J. Super. at 562-63.
When the prosecutor charged the grand jury on September 23,
2008, she read the definitions contained in N.J.S.A. 2C:14-1, including the
definition of "sexual contact" as follows:
Sexual contact means an intentional touching by the victim or
actor, either directly or through clothing of the victims or actors intimate
parts, for the purpose of degrading or humiliating the victim or sexually
arousing or sexually gratifying the actor.
Sexual contact of the actor with himself must be in view of the victim,
who the actor knows to be present[.]
Intimate parts means the following body parts: sexual organs, genital area, anal area, inner
thigh, groin, buttock, or breast of a person[.]
She also instructed the jury on criminal coercion under
N.J.S.A. 2C:13-5, which is concededly not relevant here. Next, she instructed the grand jury on
sexual-assault offenses under N.J.S.A. 2C:14-2, including the following on
second-degree sexual assault:
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.
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 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 actors legal, professional, or occupational status;
(3) The victim is at
least 16, but less than 18 years old and:
The actor is related to the victim by blood or affinity to
the third degree; or
The actor has supervisory or disciplinary power of any
nature or any capacity over the victim; or
The actor is a resource family parent, a guardian, or stands
in loco parentis within the household;
The victim is at least 13, but less than 16 years old, and
the actor is at least four years older than the victim.[3]
Sexual assault is a crime of the second degree.
The prosecutor then charged the grand jury with criminal
sexual contact, including the following portion on which defendant was
ultimately indicted:
b. An actor is guilty
of criminal sexual contact if he commits an act of sexual contact with the
victim under any of the circumstances set forth in Section 2C:14-2c through
(4).
Criminal sexual contact is a crime of the fourth degree.
Needless to
say, even had the prosecutor presented the case against defendant on September
23, 2008, the grand jury could not have applied the law to the facts. First, the prosecutor in the above-quoted
passage should have referenced "Section 2C:14-2c(1) through (4)", not
"Section 2C:14-2c through (4)."
Second, the prosecutor never indicated that she was charging the jury on
N.J.S.A. 2C:14-2c at all; she merely informed the jury that she was charging
them on "sexual assault."
Thus, although the jury knew it had been charged on offenses under
N.J.S.A. 2C:14-2, it had no idea which portion of that charge contained the
circumstances that would establish criminal sexual contact under N.J.S.A. 2C:14-3.
The misleading
effect of this charge was compounded by the passage of more than two months
before the prosecutor presented this case.
In the interim, the grand jury had considered a variety of sexual and
other crimes. The average grand juror
could not possibly be expected to recall and apply the elements of any crime,
including criminal sexual contact, after such a hiatus. At the very least, the prosecutor on December
12, 2008, should have provided the jury with a written charge on the elements
of criminal sexual contact, including relevant definitions and the pertinent
portions of N.J.S.A. 2C:14-2c. As a
result, the instructions given were so misleading that the indictment cannot
stand.[4] Ball, supra, 268 N.J. Super.
at 119-20.
IV.
In his second point, defendant argues that the trial judge
abused his discretion in failing to dismiss the indictment because the State
failed to present evidence that defendant used "physical force" in
addition to the force required to establish "sexual contact," which
itself requires the application of sufficient force for an "intentional
touching" to be "tactile," meaning "a light push, strike,
tap or nudge." Defendant claims
that "because sexual contact requires a light push, strike, nudge or tap
against N.P.s breast, additional force is required to satisfy th[e]
element" of "physical force," because merely proving that sexual
contact occurred is insufficient.[5]
Defendant avers that the use of physical force beyond that necessary to
achieve a touching is "mandatory, and is not satisfied by equating force
with the absence of consent."
Defendant contends that there is no evidence that he used any force
beyond the alleged touching of N.P.s breast, and the indictment must be
dismissed as a result.
Defendant further argues that the phrase "use of
physical force" in N.J.S.A. 2C:14-2c(1) does not equate to "lack of
consent," and if it did, anomalous results would occur in applying such an
interpretation to cases involving the other subsections of N.J.S.A. 2C:14-2c. Defendant further argues that equating
"physical force" with "lack of consent" and not requiring
an additional physical force renders the word "coercion" meaningless
as it appears in N.J.S.A. 2C:14-2c(1), because it would broaden the definition
of coercion to include anything negating "freely given" consent. Finally, defendant argues that this
interpretation would cause incongruence between the statutes governing criminal
sexual contact and harassment. In this
regard, defendant asserts that the legislature did not intend for "lack of
consent" to be a component of criminal sexual contact. He argues that physical force is inherent in
the original touching, and thus an additional amount of force is required to
criminalize the sexual contact. Defendant
also contends that we should require that the application of additional force
result in "bodily injury" for the sexual contact to be criminal.
The ACDL-NJ largely endorses defendants interpretations of
N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:14-3b.
The ACDL-NJ con-tends that defendant was wrongfully indicted because
there was no allegation of physical force in addition to the mere touching of
N.P.s breast. The ACDL-NJ urges that the
rule of M.T.S., supra, 129 N.J. 422, should not be extended to criminal sexual
contact. It contends that application of
the rule in M.T.S. to a rebuffed sexual advance by a persons sexual partner
would qualify as criminal sexual contact in the absence of a requirement for
some additional physical force beyond mere touching. Finally, the ACDL-NJ argues that the States
position renders criminal sexual contact superfluous to the petty disorderly
person offense of harassment. The
ACDL-NJ therefore urges dismissal of the indictment.
The State responds that the judge properly denied defendants
motion to dismiss the indictment because the State presented evidence of
physical force sufficient to satisfy the statutory requirements. The State submits that the statutory language
of criminal sexual contact is clear and unambiguous, and there is no
requirement that the State present evidence of physical force in addition to
sexual contact, relying on M.T.S., supra, 129 N.J. 422. Based on this case, the State concludes that
any unauthorized sexual contact is a crime under N.J.S.A. 2C:14-3. The State also cites to M.T.S. to support its
conclusion that the Supreme Court has adopted a broad definition of
"physical force," and under that definition, defendants conduct
constituted criminal sexual contact. The
State further references the model jury charge defining "physical
force" to support its conclusion.
Contrary to defendant, the State argues that no "disharmony"
is caused by equating "physical force" with sexual contact without
consent.
The judge denied defendants challenge to the indictment. He reasoned that the Supreme Courts decision
in M.T.S., the legislative history of the Penal Code, and analogous laws
compelled a finding that any unauthorized sexual contact constitutes criminal
sexual contact. Referencing the model
charge on criminal sexual contact and its definition of physical force, the
court concluded: "[I]ts clear that
the simple act of touching the breast itself, the unwanted criminal sexual
contact, no further additional force is necessary to meet the element of physical
force in the crime of criminal sexual contact."
N.J.S.A.
2C:14-3 provides in pertinent part as follows:
"An actor is guilty of criminal sexual contact if he commits an act
of sexual contact with the victim under any of the circumstances set forth in
section 2C:14-2c[](1) through (4).
Criminal sexual contact is a crime of the fourth degree." N.J.S.A. 2C:14-3b. As to the first element, "sexual
contact" is defined in pertinent part as "an intentional touching by
the victim or actor, either directly or through the clothing, of the victims .
. . intimate parts for the purpose of degrading or humiliating the victim or
sexually arousing or sexually gratifying the actor. . . ." N.J.S.A. 2C:14-1d. "Intimate parts" means the
"sexual organs, genital area, anal area, inner thigh, groin, buttock or
breast of a person." N.J.S.A.
2C:14-1e. As to the second element, the
State acknowledges that the pertinent statutory provision in this case is
N.J.S.A. 2C:14-2c(1). It provides: "The actor uses physical force or
coercion, but the victim does not sustain severe personal injury." The State concedes that defendant did not use
coercion, and thus we are concerned only with whether there was prima facie
evidence of physical force.
The Code of Criminal Justice does not define "physical
force." M.T.S., supra, 129 N.J. at
429. These words "do not evoke a
single meaning that is obvious and plain," and courts are left to construe
the words under New Jerseys established "avenues of
construction." Id. at 430-31.
The legislative history of N.J.S.A. 2C:14-3b begins in
October 1971 when the New Jersey Criminal Law Revision Commission issued its
final report in which it engaged in a "complete reexamination of [New
Jersey criminal] law." N.J. Law
Revision Commn, The New Jersey Penal Code Volume I: Report and Penal Code, at v
(Oct. 1971) (hereinafter Final Report Volume I). The purpose of the Commissions suggested
revisions to the New Jersey Criminal Code was "to modernize the criminal
law of this State so as to embody principles representing the best in modern
statutory law, to eliminate inconsistencies, ambiguities, outmoded and
conflicting, overlapping and redundant provisions and to revise and codify the
law in a logical, clear and concise manner." L. 1968, c. 281, § 4.
In drafting its proposed Criminal Code, the Commission used
the Model Penal Code (MPC) as "the principle [sic] basis of [its]
study." Final Report Volume I,
supra, at x. Consistent with this, the
Commissions proposed crime of sexual assault, the forerunner to the current
crime of criminal sexual contact, was nearly identical in its language to MPC §
213.4, the MPC section governing sexual assault. As is relevant to this discussion, proposed
Section 2C:14-4a criminalized certain sexual contact as sexual assault where:
A person who has sexual contact with another not his spouse,
or causes such other to have sexual contact is guilty of sexual assault if:
a. he knows that the contact is offensive to the other
person; or
. . . .
c. he knows that the other person is unaware that a sexual
act is being committed[.]
[Id. at 62.]
Sexual assault under either of these two sections was a
disorderly person offense.[6] Id. at
63. Finally, "sexual contact"
was defined as "any touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire." Ibid.
The Commission explained that the term was "so defined as to
require an actual touching." N.J.
Law Revision Commn, The New Jersey Penal Code Volume II: Commentary, at 200
(Oct. 1971).
In addition to
the Commissions final report, various governmental bodies issued six other
reports addressing the topic of a new penal code. Public hearings on the proposed code were
also held on June 20 and 27, 1972, and March 10, 1975. The Governors Counsel compiled a file on the
proposed code as well. Despite this
wealth of information, none of it reveals any consideration of a crime of
criminal sexual contact in the period between the Commissions proposal in 1971
and the developments of 1978.
On January 26, 1978, Senate Bill 738 was introduced in the
State Senate; this was the first introduction of a bill proposing the new
Criminal Code. S. 738, 198th Leg., 1st
Sess. (N.J. 1978). This version of the
bill did not include a crime of criminal sexual contact. Ibid.
The bill generally maintained the Commissions proposed language for the
crime of sexual assault; however, it added an additional condition under which
sexual contact would be criminal and amended the Commissions definition of
sexual contact. Ibid. The additional subsection criminalized sexual
contact where "[u]nder the circumstances, [the actor] should have known
that sexual contact would be offensive to the other person." Ibid.
The new definition of sexual contact read: "Sexual contact is any touching of the
human genitals, pubic region, or female breast of another person." Ibid.
The next verifiable action on Senate Bill 738 occurred on
May 11, 1978, when additional amendments to the bill were introduced. S. 738, 198th Leg., 1st Sess. (N.J.
1978). On this date, the Senate for the
first time proposed inclusion of the crime of "criminal sexual contact"
in the new Criminal Code. Ibid. The proposed statute, located at N.J.S.A.
2C:14-3b, read: "An actor is guilty
of criminal sexual contact if he commits an act of sexual contact with the
victim under any of the circumstances set forth in section 2C:14-2b[](1) -
(4).[[7]] Criminal sexual contact is a
crime of the fourth degree." Ibid. This version of N.J.S.A. 2C:14-3b is what
would later be formally enacted. As a
result, the only distinguishing feature between criminal sexual assault and
criminal sexual contact is the presence or absence of penetration. Otherwise, they are identical.
On May 15, 1978, the Senate Judiciary Committee released a
statement accompanying these amendments in which it gave an overview of the
various chapters of the new Criminal Code.
Senate Judiciary Committee Statement to S. 738 (May 15, 1978). Regarding Chapter 14, which governs sexual
offenses, the Committee outlined four categories of sexual offenses: aggravated sexual assault; sexual assault;
aggravated criminal sexual contact; and criminal sexual contact. Id. at 5.
The Committee then stated:
The category that a particular fact situation falls among
these four offenses is dependent on the following:
the actual sexual acts committed;
the amount of force and physical injury involved in the
offense;
the age of [the] victim and sometimes the age of the accused
. . .;
the mental state of [the] victim . . .; and
the relationship of the accused vis-Ã -vis the victim . . . .
It should also be noted with regard to these offenses that
they are defined to cover both homosexual and heterosexual situations and that
these definitions are intended to focus on the actions of the accused rather
than on behavior of the victim.
[Ibid. (emphasis added).]
Senate Bill 738 gained final approval on August 10,
1978. S. 738, 198th Leg., 1st Sess.
(N.J. 1978). The new Criminal Code was
enacted pursuant to L. 1978, c. 95, and it was effective September 1,
1979. N.J.S.A. 2C:98-4.
The final version of the Code as enacted in 1978 included
the crime of criminal sexual contact as proposed in May 1978. The four circumstances that N.J.S.A. 2C:14-3b
incorporated from Section 2C:14-2b were:
(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, or mentally incapacitated;
(3) The victim is on probation or parole, or is detained in
a hospital, prison or other institution or is mentally defective and the actor
has supervisory or disciplinary power over the victim by virtue of the actors
legal, professional or occupational status;
(4) The victim is at least 16 but less than 18 years old and
the actor is a member of the victims household with supervisory or disciplinary
power over the victim.
[L. 1978, c. 95, § 2C:14-2b.]
The definition of "sexual contact" was also
amended at this time. The definition as
enacted in 1978 and effective as of September 1, 1979, stated:
"Sexual contact" means an intentional touching by
the victim or actor, either directly or through clothing, of the victims or
actors intimate parts for the purpose of degrading or humiliating the victim or
sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must
be in view of the victim whom the actor knows to be present[.]
[L. 1978, c. 95, § 2C:14-1d.]
N.J.S.A.
2C:14-3 has been amended only twice since 1978: once in 1979, L. 1979, c. 178 §
27; and again in 1997, L. 1997, c. 194, § 2.
In 1979, the statute was amended "to provide that an act of sexual
contact where the victim is at least 13 but less than 16 years of age and the
accused is at least 4 years older than the victim constitutes criminal sexual
contact, a crime of the fourth degree."
L. 1979, c. 178 § 27. At this
time, subsection b of N.J.S.A. 2C:14-2, to which N.J.S.A. 2C:14-3b referred,
became subsection c due to the insertion of a new subsection in N.J.S.A.
2C:14-2.
The 1997 amendment changed the number references to N.J.S.A.
2C:14-2c (as contained in N.J.S.A. 2C:14-3b) to reflect new numbering in
N.J.S.A. 2C:14-2c. This was done because
the Legislature eliminated the circumstance where "[t]he victim is one
whom the actor knew or should have known was physically helpless, or mentally
incapacitated." L. 1978, c. 95, §
2C:14-2b(2). With the elimination of
that circumstance from N.J.S.A. 2C:14-2c and the concomitant renumbering of
N.J.S.A. 2C:14-2c, the Legislature needed to amend N.J.S.A. 2C:14-3b for
consistency in cross-referencing.
Notably, the elimination of this circumstance also eliminated a
circumstance under which sexual contact would be violative of the law. No other amendment to the text of N.J.S.A.
2C:14-3b was made at this time or has been made since.
The Supreme Court had occasion to consider this legislative
history in M.T.S., supra, 129 N.J. 422.
There, the issue under N.J.S.A. 2C:14-2c(1) was "whether the
element of physical force is met simply by an act of non-consensual penetration
involving no more force than necessary to accomplish that result." Id. at 425.
The juvenile "engaged in consensual kissing and heavy petting with
a fifteen-year-old girl and thereafter engaged in actual sexual penetration of
the girl to which she had not consented."
Ibid. There was no evidence of
any extra force or threats to accomplish penetration. Ibid.
The Court observed, "an unconstrained reading of the
statutory language indicates that both the act of sexual penetration and the
use of physical force or coercion are separate and distinct elements of the
offense." Id. at 429. The trial court concluded that physical force
was established by the penetration without consent; we believed the statute
required some force beyond mere penetration.
Id. at 430. The parties offered
two alternative understandings of the statute.
Ibid. The Court commented that "[r]esort
to common experience or understanding does not yield a conclusive
meaning." Ibid.
With no obvious and plain meaning apparent, the Court sought
the underlying intent of the legislature, relying on
legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42
(1975). With respect to a law, like the
sexual assault statute, that "alters or amends the previous law or creates
or abolishes types of actions, it is important, in discovering the legislative
intent, to ascertain the old law, the mischief and the proposed
remedy." Grobart v. Grobart, 5 N.J.
161, 166 (1950); accord Key Agency v. Continental Casualty Co., 31 N.J. 98
(1959) (noting that ambiguous statutory phrases should be interpreted in light
of the occasion and necessity of the law, mischief felt, and remedy in
view). We also remain mindful of the
basic tenet of statutory construction that penal statutes are to be strictly
construed in favor of the accused.
Nevertheless, the construction must conform to the intent of the
Legislature. See State v. Des Marets, 92
N.J. 62, 68-70 (1983); State v. Brown, 22 N.J. 405 (1956).
[Id. at 431.]
The Court then engaged in a lengthy and thorough analysis of
the history of the adoption of New Jerseys current law on sexual offenses,
starting with English common law, calls for its reform, and the enactment of
the current statutory framework. Id. at
431-47.
After commenting that "the Legislature placed primary
emphasis on the assaultive nature of the crime," id. at 442, the Court
observed:
The Legislatures concept of sexual assault and the role of
force was significantly colored by its understanding of the law of assault and
battery. As a general matter, the
criminal battery is defined as "the unlawful application of force to the
person of another." 2 Wayne LaFave
& Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it
results in either (a) physical injury or (b) an offensive touching. Id. at 301-02. Any "unauthorized touching of another
[is] a battery." Perna v. Pirozzi,
92 N.J. 446, 462 (1983). Thus, by
eliminating all references to the victims state of mind and conduct, and by
broadening the definition of penetration to cover not only sexual intercourse between
a man and a woman but a range of acts that invade anothers body or compel
intimate contact, the Legislature emphasized the affinity between sexual
assault and other forms of assault and battery.
The intent of the Legislature to redefine rape consistent
with the law of assault and battery is further evidenced by the legislative
treatment of other sexual crimes less serious than and derivative of
traditional rape. The Code redefined the
offense of criminal sexual contact to emphasize the involuntary and
personally-offensive nature of the touching.
N.J.S.A. 2C:14-1(d). Sexual
contact is criminal under the same circumstances that render an act of sexual
penetration a sexual assault, namely, when "physical force" or
"coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a
crime under traditional laws of assault and battery, so is any unauthorized
sexual contact a crime under the reformed law of criminal sexual contact, and
so is any unauthorized sexual penetration a crime under the reformed law of
sexual assault.
[Id. at 442-43.]
The Court then
reasoned that interpreting the crime of sexual assault "to require
physical force in addition to that entailed in 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."
Id. at 443. The Court rejected a
requirement that "the element of force need be extrinsic to the sexual
act" because it "would not only reintroduce a resistance requirement
into the sexual assault law, but also would immunize many acts of criminal
sexual contact short of penetration."
Id. at 444. The Court stated,
The characteristics that make a sexual contact unlawful are
the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact
if he or she commits an act of sexual contact with another using "physical
force" or "coercion."
N.J.S.A. 2C:14-3(b). That the
Legislature would have wanted to decriminalize unauthorized sexual intrusions
on the bodily integrity of a victim by requiring a showing of force in addition
to that entailed in the sexual contact itself is hardly possible.
[Ibid.]
The Court recognized that "the standard defining the
role of force in sexual penetration must prevent the possibility that the
establishment of the crime will turn on the alleged victims state of mind or
responsive behavior." Ibid. This led the Court to conclude that:
any act of sexual penetration engaged in by the defendant
without the affirmative and freely-given permission of the victim to the
specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that
inherent in the act of sexual penetration is not required for such penetration
to be unlawful. The definition of
"physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant
applies any amount of force against another person in the absence of what a
reasonable person would believe to be affirmative and freely-given permission
to the act of sexual penetration.
[Ibid.]
The Court
observed that "under assault and battery doctrine, any amount of force
that results in either physical injury or offensive touching is sufficient to
establish a battery." Id. at
445. The Court, therefore, concluded as
follows:
That
understanding of the crime of sexual assault fully comports with the public
policy sought to be effectuated by Legislature.
In redefining rape law as sexual assault, the Legislature adopted the
concept of sexual assault as a crime against the bodily integrity of the
victim. Although it is possible to
imagine a set of rules in which persons must demonstrate affirmatively that
sexual contact is unwanted or not permitted, such a regime would be
inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as
sexual assault to bring that area of law in line with the expectation of
privacy and bodily control that long has characterized most of our private and
public law. See Hennessey v. Coastal
Eagle Paint Oil Co., 129 N.J. 81, 94-96 (1992) (recognizing importance of
constitutional and common-law protection of personal privacy); id. at 106
(Pollock, J., concurring) (emphasizing that common-law right of privacy
protects individual self-determination and autonomy). In interpreting "physical force" to
include any touching that occurs without permission we seek to respect that
goal.
[Id. at 445-46.]
The Court determined that any other interpretation of the
law "would directly undermine the goals sought to be achieved by its
reform." Id. at 447.
The Supreme
Court again addressed "physical force" in State v. Thomas, 166 N.J.
560 (2001). The defendant pled guilty to
second-degree sexual assault. Id. at
563. We held that "physical
force" as used in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
requires an "independent act of force or threat of force against the
victim that is additional to the constituent elements of the crime." State v. Thomas, 322 N.J. Super. 512, 516
(App. Div. 1999), aff’d, 166 N.J. 560 (2001), superseded on other grounds by
statute, L. 2001, c. 129 (codified at N.J.S.A. 2C:43-7.2), as recognized in
State v. Parolin, 171 N.J. 223, 232 (2002).
We also concluded that "physical force" in NERA meant
"force used to overcome a lack of consent, and which is a separate force .
. . independent from the simple act of the sexual touching, or just the very
act of penetration as in the case of M.T.S." Thomas, supra, 322 N.J. Super. at 520.
The Supreme
Court considered whether NERA applied to second-degree sexual assault. Thomas, supra, 166 N.J. at 563. To resolve that issue, the Court needed to
"interpret the meaning of the term physical force as used in NERA." Ibid.
The Court first noted that it is permissible to interpret an imprecise term
differently in two different sections of a statute where those sections have
different purposes. Id. at 568. The Court then stated that because M.T.S.
focused on defining an element of a charged offense and NERA was enacted to
enhance the severity of punishments for certain offenses, it believed the
Legislature intended to ascribe a different meaning to "physical
force" as used in NERA than provided in M.T.S. Id. at 568-69. The Court affirmed our decision, holding that
where the elements of the sexual offense charged do not contain a NERA factor,
the State must prove an additional independent act of force or violence or a
separate threat of immediate physical force to satisfy the NERA factor. Id. at 574.
Although the
only distinguishing fact between sexual assault and criminal sexual contact is
the fact of penetration, defendant and the ACDL-NJ argue that "physical
force" pursuant to N.J.S.A. 2C:14-2c(1) should not be governed by the
dicta of M.T.S. respecting its incorporation by reference in N.J.S.A.
2C:14-3b. Instead, they urge that the
State must prove defendant used some physical force beyond the mere sexual
contact. They relied on one of our unpublished decisions imposing such an
additional requirement based on language in Thomas, supra, 322 N.J. Super. at
515, where we noted that M.T.S. was "inapposite" to the facts
presented because "[M.T.S.] involved an act of sexual penetration . . .
and the Court, in construing the phrase physical force . . . concluded that,
under the circumstances, just the very force of penetration . . . was
sufficient to satisfy the physical force element of second degree sexual
assault."
The context in which we found M.T.S. inapposite was a
dispute over whether a sexual assault upon a minor in violation of N.J.S.A.
2C:14-2b constituted a "violent crime" under NERA. Id. at 514.
As noted above, we concluded that some physical force in additional to
the sexual contact was required to trigger application of NERA. Id. at 519 (construing N.J.S.A. 2C:43-7.2d,
which provides that "[v]iolent crime also includes any aggravated sexual
assault or sexual assault in which the actor uses, or threatens the immediate
use of, physical force"). Thus, we
are here satisfied that the unpublished decision on which defendant and the
ACDL-NJ rely is not persuasive and Thomas does not stand for the proposition
for which it has been cited.
We conclude
that the judge did not abuse his discretion in denying defendants motion to
dismiss the indictment based on his entirely correct interpretation and
application of M.T.S. Indeed, M.T.S. is
controlling here. The Supreme Court
specifically stated that sexual contact is criminal when "physical force"
demonstrates that it is unauthorized and offensive, and any unauthorized sexual
contact is a crime under the law of criminal sexual contact. M.T.S., supra, 129 N.J. at 443. Contrary to defendants argument here, the
Court rejected the concept that "physical force" in addition to the
sexual contact is required for sexual contact to be criminal. Id. at 443-44. Perhaps most salient is the Supreme Courts
reasoning that an interpretation of the statute requiring "physical
force" extrinsic from and independently additional to the sexual act would
"immunize many acts of criminal sexual contact short of penetration,"
and that "[t]he characteristics that make a sexual contact unlawful are
the same as those that make a sexual penetration unlawful." Id. at 444.
Its opinion in Thomas does not trump M.T.S.
Defendant also
contends that N.J.S.A. 2C:14-3b, the statute governing the crime of
fourth-degree criminal sexual contact, must be construed to harmonize with the
statutes governing harassment, N.J.S.A. 2C:33-4, and simple assault, N.J.S.A.
2C:12-1. In his brief, defendant
discusses and analyzes N.J.S.A. 2C:14-3b in the specific context of N.J.S.A.
2C:33-4b in an attempt to show that disharmony between the statutes would exist
if N.J.S.A. 2C:14-3b is not found to require physical force in addition to
sexual contact. At oral argument on
January 27, 2010, defense counsel again expounded on this issue, essentially
arguing that a hierarchy exists among the three above-cited statutes. At the bottom of the hierarchy is the petty
disorderly person offense of harassment and its prohibition on offensive
touching. Next comes the disorderly
person offense of simple assault and its penalization for causing bodily
injury. Last is fourth-degree criminal
sexual contact and its criminalization of sexual contact under certain
circumstances.
In pertinent part, N.J.S.A. 2C:33-4b reads: "[A] person commits a petty disorderly
person offense if, with purpose to harass another, he . . . [s]ubjects another
to striking, kicking, shoving, or other offensive touching, or threatens to do
so[.]" Also in pertinent part,
N.J.S.A. 2C:12-1a reads: "A person
is guilty of assault if he: (1) Attempts
to cause or purposely, knowingly or recklessly causes bodily injury to
another[.]"
These crimes do not constitute a hierarchy. We have found that simple assault is not an
offense included within sexual assault or criminal sexual contact. State v. Queen, 221 N.J. Super. 601, 606
(App. Div.), certif. denied, 110 N.J. 506 (1988). We found that the bodily-injury element of
simple assault is missing from the proof required to establish sexual assault
or criminal sexual contact. Ibid. A similar result would likely be reached with
harassment, because the purpose to harass element is not present in sexual
assault and criminal sexual contact. We
find that disharmony among these statutes is not caused by following M.T.S.
when considering the evidence necessary to make out a prima facie case of
criminal sexual contact. Even if that
conclusion is in error, here some additional physical force can be inferred
from defendants act of first placing his hand on the victims shoulder before he
put his other hand on her breast and attempted to kiss her. He is not entitled to have the indictment
dismissed on this ground.
Reversed and
remanded for further proceedings consistent with this opinion.
[1] The indictment states that defendant committed an act of
criminal sexual contact upon N.P. "contrary to the provisions of N.J.S.
2C:14-3b(1)." Defendant points out
that N.J.S.A. 2C:14-3b does not have any such subsections; the State asserts
that the "(1)" is clearly a reference to N.J.S.A. 2C:14-2c(1). Defendant does not present this as a
challenge to the indictment on appeal.
[2] Defendant also challenged the prosecutors denial of his
application for admission into the Essex County Pretrial Intervention
Program. The trial court denied this
challenge, and that decision is not before us.
[3] The prosecutor failed to preface this paragraph by
indicating that it was the fourth circumstance giving rise to commission of a
sexual assault.
[4] We are referring this issue to the Criminal Practice
Committee for its consideration.
[5] Defendant cites an unpublished Appellate Division
opinion for this proposition.
[6] Subsections 2C:14-4b and -4d through -4h are largely
irrelevant to this case. Subsection 2C:14-4b
involved victims suffering from mental diseases or defects. Subsections 2C:14-4d, -4f, and -4g involved
the victims age. Subsection 2C:14-4e
dealt with the person administering drugs to the victim without the victims
knowledge. Subsection 2C:14-4h involved
the victim being in custody or otherwise detained in an institution. Id. at 62.
[7] N.J.S.A. 2C:14-2b, now N.J.S.A. 2C:14-2c, currently
provides as follows:
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 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 actors 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.
