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State in Interest of B.G.

Decided: April 19, 1991.

STATE OF NEW JERSEY, IN THE INTEREST OF B.G., C.A., AND P.A., JUVENILES


On appeal from the Superior Court, Chancery Division, Family Part, Essex County.

Dreier, Ashbey and Landau. The opinion of the court was delivered by Ashbey, J.A.D. Dreier, J.A.D. (concurring).

Ashbey

C.A., P.A., and B.G., charged with juvenile delinquency,*fn1 appeal on leave granted from a Family Part ruling under N.J.S.A. 2A:4A-26, which transferred jurisdiction over certain complaints against them to the adult courts. The State cross-appeals from the Family Part's decision finding no probable cause for the charges which asserted force or coercion and from the court's finding that B.G. was rehabilitated.

These complaints stem from a March 1, 1989 incident in which M.G., a juvenile girl of limited intellectual ability, was allegedly the victim of various sexual assaults by more than one young man, acting as part of a group of teenaged juveniles and adults.*fn2 The nature of the specific charges against respondents requires detailed exploration under the statute permitting involuntary transfer to the adult courts, as such transfer can only be made if the Family Part judge finds that:

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute [aggravated sexual assault, sexual assault and conspiracy].

N.J.S.A. 2A:4A-26a.

The State alleged that on March 1, 1989, C.A. committed the following acts against M.G.:

1) Aggravated sexual assault by force or coercion contrary to N.J.S.A. 2C:14-2a(5)(a) (vaginal penetration);

2) Aggravated sexual assault on a person whom he knew or should have known to be mentally defective contrary to N.J.S.A. 2C:14-2a(5)(b);

3) Aggravated sexual contact contrary to N.J.S.A. 2C:14-3a (victim masturbate respondent);

4) Aggravated sexual contact where he knew or should have known the victim to be mentally defective contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(b);

5) Conspiracy to commit aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(5)(a) & (b) and N.J.S.A. 2C:5-2.

The juvenile delinquency complaint against B.G. alleged that on the same occasion he committed the following acts against M.G.:

1) Aggravated sexual assault using force or coercion contrary to N.J.S.A. 2C:14-2a(5)(a) (fellatio);

2) Aggravated sexual assault where he knew the victim to be mentally defective contrary to N.J.S.A. 2C:14-2a(5)(b);

3) Aggravated sexual contact contrary to N.J.S.A. 2C:14-3a (victim masturbate respondent);

4) Aggravated sexual contact where he knew or should have known the victim to be mentally defective contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(b);

5) Conspiracy to commit aggravated sexual assault contrary to N.J.S.A. 2C:5-2.

The juvenile delinquency complaint against P.A. alleged he committed the following acts against M.G.:

1) Aggravated sexual contact using force or coercion contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(a) (victim masturbate respondent);

2) Aggravated sexual contact where he knew or should have known the victim to be mentally defective contrary to N.J.S.A. 2C:14-3a and N.J.S.A. 2C:14-2a(5)(b);

3) Conspiracy to commit aggravated sexual assault contrary to N.J.S.A. 2C:5-2.

The sexual assault charges represent adult crimes under N.J.S.A. 2C:14-2a(5)(a) and (b) which provides in relevant part:

2C:14-2. Sexual Assault. a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(5) The actor is aided or abetted by one or more other persons and either of the following circumstances exists:

(a) The actor uses physical force or coercion, or

(b) The victim is one whom the actor knew or should have known was . . . mentally defective. . . .

Similar provisions are incorporated by reference into the adult crime of criminal sexual contact. N.J.S.A. 2C:14-3a.

N.J.S.A. 2C:14-2 refers back to N.J.S.A. 2C:14-1, for the following definition:

h. "Mentally defective" means that condition in which a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of [her] conduct, including, but not limited to, being incapable of providing consent;

"'Physical force' [not defined in the statute] is force applied to the victim's body." State v. Queen, 221 N.J. Super. 601, 606, 535 A.2d 539 (App.Div.), certif. denied, 110 N.J. 506, 541 A.2d 1367 (1988). N.J.S.A. 2C:13-5a, incorporated by reference in N.J.S.A. 2C:14-1j, gives the following definition of "coercion."

A person is guilty of criminal coercion if, with purpose unlawfully to restrict another's freedom of action to engage or refrain from engaging in conduct, he threatens to:

(7) Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to [her] . . . career . . . reputation or personal relationships.

A "mentally defective" person is one who does not have sufficient relevant sexual understanding, "including, but not limited to being capable of providing a consent." N.J.S.A. 2C:14-1h. Under N.J.S.A. 2C:2-10a, a victim's consent may also be considered a defense to forceful sexual assault by negating the force element or by precluding the harm sought to be prevented by the statute. See State in the Interest of M.T.S., 247 N.J. Super. 254, 259, 588 A.2d 1282, 1284 (App.Div.1991). N.J.S.A. 2C:2-10c provides, however, that a victim's "assent" is not "consent" if

(2) [i]t is given by a person who by reason of . . . mental . . . defect . . . is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of the harmfulness of the conduct charged . . .; or (3) [i]t is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

While lack of consent and force may not be co-extensive terms, CANNEL, CRIMINAL CODE ANNOTATED, Comment N.J.S. 2C:14-5, sexual assault ...


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