On certification to the Superior Court, Appellate Division, whose opinion is reported at
Handler, Wilentz, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words "physical force." The question posed by this appeal is 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.
That issue is presented in the context of what is often referred to as "acquaintance rape." The record in the case discloses that the juvenile, a seventeen-year-old boy, 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. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.
The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the Disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. 247 N.J. Super. 254 (1991). We granted the State's petition for certification. 126 N.J. 341 (1991).
The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.
On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.'s mother; he slept downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager's testimony.
C.G. stated that earlier in the day, M.T.S. had told her three or four times that he "was going to make a surprise visit up in [her] bedroom." She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.
C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that "he was going to tease [her] a little bit." C.G. testified that she "didn't think anything of it"; she walked past him, used the bathroom, and then returned to bed, falling into a "heavy" sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said "his penis was into [her] vagina." As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then "told him to get off [her], and get out." She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., "he jumped right off of [her]." She said she did not know how long M.T.S. had been inside of her before she awoke.
C.G. said that after M.T.S. left the room, she "fell asleep crying" because "[she] couldn't believe that he did what he did to [her]." She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was "scared and in shock." According to C.G., M.T.S. engaged in intercourse with her "without [her] wanting it or telling him to come up [to her bedroom]." By her own account, C.G. was not otherwise harmed by M.T.S.
At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to "get [him] out of the house." While M.T.S. was out on an errand, C.G.'s mother gathered his clothes and put them outside in his car; when he returned, he was told that "[he] better not even get near the house." C.G. and her mother then filed a complaint with the police.
According to M.T.S., he and C.G. had been good friends for a long time, and their relationship "kept leading on to more and more." He had been living at C.G.'s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been "kissing and necking" and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she "didn't want him to, but she did after that." He said C.G. repeatedly had encouraged him to "make a surprise visit up in her room."
M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.'s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began "kissing and all," eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he "stuck it in" and "did it [thrust] three times, and then the fourth time [he] stuck it in, that's when [she] pulled [him] off of her." M.T.S. said that as C.G. pushed him off, she said "stop, get off," and he "hopped off right away."
According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, "how can you take advantage of me or something like that." M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., "I'm leaving . . . I'm going with my real girlfriend, don't talk to me . . . I don't want nothing to do with you or anything, stay out of my life . . . don't tell anybody about this . . . it would just screw everything up." He then walked downstairs and went to sleep.
On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1). In addition, he faced unrelated charges for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3a, third-degree escape, contrary to N.J.S.A. 2C:29-5, and fourth-degree criminal trespass, contrary to N.J.S.A. 2C:18-3.
Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed the juvenile's adjudication of delinquency for that offense. 247 N.J. Super. at 260-61.
The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines "sexual assault" as the commission "of sexual penetration" "with another person" with the use of "physical force or coercion."*fn1 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. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words "physical force." The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing ...