The opinion of the court was delivered by: Handler, J.
Argued September 29, 1998
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 303 N.J. Super. 584 (1997).
In this case, defendant was convicted of the sexual assault of a mentally defective person. At trial, defendant attempted to introduce evidence of the victim's past sexual experiences through the cross-examination of the State's expert psychologist. The purpose of that evidence, according to defendant, was to demonstrate that the victim had the capacity to consent to sexual relations despite her mental condition. The trial court ruled that defendant could not elicit the evidence.
The issue posed by this appeal is whether, in a sexual assault case in which the State claims the victim lacked the mental capacity to withhold consent to sexual acts, the New Jersey Rape Shield Law, N.J.S.A. 2C:14-7, may be applied to exclude evidence of past sexual conduct that is offered to show that the victim had the mental capacity to consent to sexual contact. If such evidence is excluded, we also address whether that exclusion violates the defendant's constitutional right to confront witnesses.
Defendant, Azem Cuni, was indicted and tried for first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3); second degree sexual assault, contrary to N.J.S.A. 2C:14-2c(1) and (2); third degree burglary, contrary to N.J.S.A. 2C:18-2; and fourth degree criminal trespass, contrary to N.J.S.A. 2C:18-3. At the Conclusion of trial, the jury returned guilty verdicts on all counts. The court thereafter merged the burglary charge and the sexual assault charge under N.J.S.A. 2C:14-2c(1) into the aggravated sexual assault charge, sentenced defendant to an aggregate term of twelve years in prison, and imposed appropriate penalties.
Defendant appealed his convictions. The Appellate Division reversed the convictions for aggravated sexual assault and burglary. 303 N.J. Super. 584 (1997). The court found that the trial court erred by not instructing the jury that, in order to convict defendant of burglary and aggravated sexual assault based on that burglary, defendant had to have entered the victim's house with the intention to engage in sexual penetration without her consent. Id. at 598; 604. Because the failure to so instruct was "capable of producing an unjust result," the court reversed both the aggravated sexual assault and the burglary convictions. Id. at 603-04. The court affirmed the other convictions, finding no reversible error in defendant's remaining contentions. Id. at 610-11. Judge Pressler Dissented on the ground that defendant's two sexual assault convictions should also be reversed because evidence of the victim's two past sexual experiences were excluded under the Rape Shield Law, violating defendant's right to confrontation. Id. at 611-13.
Defendant appealed the Appellate Division's decision as of right based on the Dissent, pursuant to R. 2:2-1(a)(2). Defendant also petitioned for certification on two additional issues. The Court denied that petition. 152 N.J. 12 (1997).
In 1992, the victim, T.O., was thirty years old and lived with her younger sister and mother in a house in Jefferson Township. T.O. had been tested as being in the borderline range for being mentally deficient. *fn1
One afternoon in late October 1992, T.O. ordered a sandwich from a local pizzeria for home delivery. Defendant soon thereafter arrived at T.O.'s door with her order. Because T.O. did not possess a key to the locked front door, T.O. opened a window in order to retrieve her sandwich. Defendant bent down and kissed T.O. through the window, using his tongue. T.O. testified that she "didn't want it." Defendant told T.O. that people at the pizzeria were talking about her and saying that she was a beautiful person. T.O. then paid for her sandwich and defendant departed.
Two or three weeks later, T.O. again ordered a sandwich from the pizzeria. T.O., who was home alone, watched television in her bedroom while waiting for the delivery. After twenty-five minutes had passed without a knock, T.O. moved to the livingroom to wait for the delivery. There she encountered defendant standing in the room. T.O. had not given defendant permission to enter her home and felt "invaded" by his presence.
T.O. testified that defendant then "start[ed] getting funny with me. He start[ed] kissing me on my lips and then he start[ed] going down in my pants . . . ." Although T.O. did not want to kiss defendant, she did not say anything at the time. T.O. then asked defendant to leave and went into her room in order to get money to pay for the sandwich. Defendant did not respond, but instead followed T.O. into her room. T.O. described what transpired: "We go over to my bed. He sits me down on the corner and then he proceeds to pull my pants -- my undershorts and my slacks down to my ankles and he does his thing." By "does his thing," T.O. meant that defendant had sexual intercourse with her against her will. Before leaving, defendant instructed T.O. not to tell anyone about the encounter.
T.O. testified that defendant hurt her with the force of sexual penetration. As T.O. described it, however, the pain did not "bother me because I wasn't really paying close attention, you know. I was thinking of some other stuff . . . I was unhappy when he did it, I was scared, but it just didn't cross my mind of what he was doing." T.O. pondered "ways to get out of it," such as "hid[ing] down in [her] sister's room and call[ing] the cops from there . . . [or hiding] upstairs in the attic with [her] father's airgun rifle just to scare [defendant] away."
About two weeks later, on November 28, defendant returned to T.O.'s house and entered without knocking. T.O. was alone when defendant appeared in her bedroom doorway. She spoke first and said, "You." Defendant asked T.O. if she liked him, and she told him she would have to think about it and for him to come back later. As T.O. described it, "Then it clicks. I knew exactly what he did. . . . I got the telephone, called my neighbor. . . . I asked her if I could come over. She said why, and I told her that somebody sexually molested me." The neighbor told T.O. to call her mother. T.O. followed those instructions and informed her mother that "somebody was taking advantage of me."
On November 30, 1992, Detective John Kessler of the Jefferson Township Police Department interviewed T.O. about the incident. T.O. provided Detective Kessler with a description of defendant and his place of employment. Detective Kessler went to the pizzeria where he found defendant. Defendant agreed to be interviewed by Kessler at the police station, where he subsequently waived his constitutional rights and admitted to having sex with T.O. He stated that he "did her" and that he "guessed" that she wanted to have sex with him as well. When asked whether he told T.O. not to tell anyone about the incident, defendant did not respond. Defendant said that he was only familiar with T.O. from delivering food to her home "a couple of times." Defendant told Detective Kessler that the first time he kissed T.O., he did not know whether she wanted him to. Detective Kessler never asked defendant whether he believed that T.O. was mentally defective. *fn2
At trial, defendant claimed that both encounters with T.O. were consensual, that she was not mentally defective, and that, if she was mentally defective, he did not know nor should he have known. Defendant testified that when he first kissed T.O. through the window, he told her that she was good looking and she responded "yes, I am, you know." He also claimed that he asked for and received permission to kiss her. Defendant further testified that when T.O. placed her second order, she requested that he deliver it. He claimed that he knocked on the door, and only opened it after he saw her through the window walking toward the door. Once encountering T.O. on entering the room, he again asked her permission to kiss her; the two then kissed and held hands. Defendant claimed that he then asked T.O. if she wanted "to do it" and she led him into her bedroom where they had sex. Afterwards, defendant said T.O. appeared "happy, not scared." Defendant claimed that he had no idea that T.O. was mentally defective. Defendant also testified about the final encounter, asserting that when T.O. told him to leave and come back later, he agreed to do so.
The State produced Dr. Anthony D'Urso, who testified as an expert in the field of clinical psychology. After meeting with T.O. twice, reviewing her childhood evaluations, and conducting several different tests, Dr. D'Urso concluded that T.O. lacked any functional ability to understand the sexual assault and her ability to stop the sexual assault [and that] although she is knowledgeable about sexual activity and can talk about it in the concrete, apart from a stressing or assaultive experience that her functional ability to say no, to fend against such an action and not comply with the requests of the assaultive person puts her in the mentally deficient range. Dr. D'Urso testified further about T.O.'s knowledge of sex and understanding of consent:
"Q: And again can you tell us what you mean by she understands concretely what these things are?"
"A: She knows that intercourse is where a penis is inserted in a vagina. She knows that prophylactics are used for safe sex. She knows that people don't have the right to invade your body. Those are the kind of things that in the concrete she would know. In other words, she can say those rotely to you. She can understand that people have a right to the integrity of their bodies and she can talk to you about the fact that no one has a right to assault anyone else."
"Q: So she knows that she has a right to refuse?"
"A: She intellectually knows that she has a right to refuse, yes."
The expert was then asked whether T.O. had the "ability to resist, to exercise that right to refuse." He answered:
"I do not functionally believe she has the right to refuse. . . . As a matter of circumstance, when someone is forcing themselves on her, when someone is telling her words and saying things, when people are manipulating her body and touching her, putting her in positions on beds, it is my clinical judgment that she doesn't have the functional ability to say no . . . ."
Dr. Ronald Silikovitz, a psychologist for defendant, testified that he questioned T.O. about sex in interviews and concluded that she knew the nature of sexual acts and "[s]he knew she had the right to say no." He testified further:
"She is aware of the mechanics, the anatomy, the physiology and the implications of sexual acts including kissing all the way up through intercourse. She's aware of all that. She can define it. She can verbalize it. She's aware of consequences if you do this this will happen. She's aware about condoms and knows what happens when you do and don't use condoms and she discussed that with me. She certainly I believe knew she had the right to say no and I think she was capable of saying no. I also find a very explicit sexual fantasy in the projective testing."
During the trial, the chief issue was the admission of evidence of T.O.'s past sexual experiences. In her interviews with both experts, T.O. related two sexual incidents occurring eleven years earlier. *fn3
On cross-examination of Dr. D'Urso, defense counsel asked whether he had questioned T.O. about her prior sexual conduct. After Dr. D'Urso answered that he had, the State objected, arguing that the Rape Shield Law barred the testimony. Dr. D'Urso further explained, in response to the court's inquiry, that he asked T.O. about her past "to understand what she knew about sexuality and what she knew about intercourse and how she experienced those behaviors before." That history was "just one piece" of the information he used to come to his Conclusions about T.O.'s capacity to consent. He also indicated that T.O.'s eleven year period of abstinence since the encounters was significant because it showed that her experience was "typical  of people who were cognitively limited on how sexual experiences typically occur."
The trial court ruled that the testimony was not admissible. The court determined that defense counsel had failed to comply with the procedural requirements of the Rape Shield Law because he did not before trial apply to the court for an order to admit T.O.'s sexual history into evidence. On the merits of the claim, the court ruled that the evidence should be excluded for the following reasons: the passage of time made the evidence's relevance suspect; the incidents in the past are not similar enough to the present incident because the past incidents involved friends and the present incident involves a stranger; and, admitting the evidence would distract the jury by "delving into the circumstances of those cases and trying to assess what [T.O.'s] mental capacity may have been at the time."
The defendant was charged and convicted of sexual assault under N.J.S.A. 2C:14-2c(1) and (2):
"An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one ...