The defendants were indicted for five counts of first degree aggravated sexual assault (as well as five counts of kidnapping, terroristic threats and possession of a weapon for an unlawful purpose), allegedly committed against two victims, ages 15 and 18.
The issue presented is whether second degree "statutory rape", N.J.S.A. 2C:14-2c(5), is a lesser included offense of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a.
Because second degree statutory rape has different and greater elements relating to the ages of the victim and the actor than first degree aggravated sexual assault, it is not a lesser included offense and cannot be submitted to a jury without a defendant's consent.
One count of the indictment charged the defendants, Maurice Burden and Ellis Smith, with first degree aggravated sexual assault of C.M. by vaginal penetration, contrary to the provisions of N.J.S.A. 2C:14-2. The defendants were 21 and 22 respectively, while this victim was only 15 years of age at the time of the alleged sexual assault. Neither the victim's nor defendants' ages were set forth in the indictment.
Since the defendants' sole defense to the indictment was the alleged consent of the victims, the guilt of the defendants of statutory rape of the 15-year-old girl was evident.
The jury could have reasonably concluded that the defendants were guilty of a first degree aggravated sexual assault, either because the act was committed during an alleged kidnapping, N.J.S.A. 2C:14-2a(3), or that the actor was armed with a weapon, N.J.S.A. 2C:14-2a(4), or that the actor was aided by an accomplice and he used physical force or coercion. N.J.S.A. 2C:14-2a(5)(a).
The State requested the court to charge as lesser included offenses second degree sexual assault under N.J.S.A. 2C:14-2c(1),
which requires only an act of sexual penetration where the actor uses physical force or coercion and also N.J.S.A. 2C:14-2c(5), which requires an act of sexual penetration where the victim is at least 13 but not over 16 and the actor is four years older than the victim.
The attorneys for the defendants acknowledged that there was a factual and legal basis for submitting the first subsection to the jury as a lesser offense, but objected to the latter request upon the ground that this statutory second degree offense is not a lesser included offense to a general allegation of first degree aggravated sexual assault. The court refused to charge the second degree statutory rape provision as a lesser included offense.
The jury found both defendants not guilty on all counts.
I write this opinion to record and supplement my reasons for denying State's request to charge the statutory rape ...