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State v. K.E.

December 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
K.E., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-00543.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2009

Before Judges Rodríguez, Yannotti and Chambers.

Defendant K.E. appeals from his conviction by a jury of three counts of sexual assault, N.J.S.A. 2C:14-2(c)(1) (second- degree); one count of attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(c)(1) (second-degree); and two counts of harassment N.J.S.A. 2C:33-4 (disorderly persons offenses) as the lesser included offense of terroristic threats. Defendant also appeals his sentence. He received a five-year sentence of imprisonment on each of the sexual assault counts and the attempted sexual assault count, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The harassment counts were merged with the criminal assault counts. The sentences on counts one and two were consecutive, and the balance of the counts were concurrent with count two, so that defendant received an aggregate sentence of ten years, subject to NERA.

We reverse the conviction due to the introduction into evidence of certain highly prejudicial and inadmissible evidence.

I.

The conviction arose out of defendant's sexual conduct with E.A., his wife, who was living with him at the time of the offenses. The parties were married in Egypt on September 13, 2005, having met for the first time only a month earlier. At the time of her marriage, E.A. was twenty-seven years old, a university graduate living with her parents, and working for a computer company in Egypt. She had been seeking admission into the United States prior to that time. Defendant, thirty-eight years old at the time of the marriage, was also a native of Egypt, but he had become an American citizen and was living in New Jersey. He had earned a bachelor's degree in Egypt and a bachelor's degree in the United States. In August 2005, he traveled to Egypt to seek a wife. He had been placed in touch with E.A. and her family through his sister. After their marriage in Egypt, E.A. and defendant came to the United States to live in defendant's apartment in New Jersey. E.A.'s married sister also lived in New Jersey with her spouse and children.

E.A. testified that she and defendant had normal sexual relations until January 2006, about four months after their marriage. At this time, defendant became controlling, bossy and demanding, and would threaten to put her out on the street and report her to the police. She also complained to others because he had not enrolled her in driving lessons and English lessons as he had promised. She asserted that on two occasions in January 2006, defendant sexually assaulted her, one time vaginally and the second time anally. After the anal assault, she contended that defendant refused her request to go to a doctor, saying that she would be okay and did not need a doctor. While she did not advise her father of these incidents, she did complain to him by telephone about defendant's conduct in a general way. As a result, her father spoke to defendant, and E.A. went to live with her sister for a couple of weeks. In addition, a meeting was held between the parties, their families and the Imam of their mosque regarding the marital situation.

E.A. reported that defendant's conduct initially improved upon her return to their apartment. However, in February, after the parties had consensual sex and she had showered, she testified that defendant approached her again and forcibly had vaginal sex with her. In another incident in early March, E.A. testified that defendant demanded that she perform oral sex on him, which she did. When it was not done to his satisfaction, he pushed her, causing her head to strike the faucet, and she lost consciousness.

According to E.A., on March 10, 2006, defendant attempted to force anal sex upon her and when she ran away and screamed, a neighbor came to the door and then called the police. When the police arrived, defendant told them that his wife had screamed because of bad news she had received from home. The police spoke directly to E.A., and she told them that she was all right.

E.A. testified that on April 6, 2006, when she told defendant in a phone conversation that he had a weak personality, he became angry and told her three times that he divorced her. He then threatened that if he found her in the apartment when he returned home, he would hurt her. When E.A.'s sister went to the apartment and saw E.A. upset, she arranged to have E.A. taken by ambulance to the hospital. At this time, E.A. told her sister about the sexual assaults. This was the first time she had reported them to anyone. She explained that she did not report them earlier because they were something that should be kept between spouses and would be shameful to talk about with others. On April 24, 2006, E.A. reported the sexual assaults to the authorities. The parties received an Egyptian divorce on May 7, 2006. Despite her complaints that the anal assault continued to effect her bowel movements, E.A. never sought medical treatment for the problem.

Defendant testified and presented a much different version of events. He denied having any forcible sexual relations with E.A. He further denied ever having anal sex with her and explained that such sex was prohibited by his religion. He acknowledged that he had promised E.A. English and driving lessons, and that his working hours and financial constraints prevented him from providing those classes to her. He stated that in December they began arguing about these issues, as well as about E.A.'s failure to wear a hijab which she had agreed to do at the beginning of the marriage.

With respect to the March 10, 2006 incident, he explained that E.A. had been rude to his sister that day. After his sister and her family left, he complained to E.A. about her behavior, and E.A. started screaming at him. He confirmed that when the neighbor and police came to the door he said that E.A. had received some bad information from home, which he acknowledged was not true.

Defendant also expressed his belief that E.A. married him for financial reasons. He set forth his understanding that by proving domestic abuse she would be able to obtain a permanent green card and stay in the United States even though their marriage had not lasted the requisite two years. He explained that this information was obtainable from the U.S. Citizenship and Immigration Services' website. On cross-examination, the prosecutor confronted him with information from the website that while confirming this statement, also indicated that the spouse of an American citizen was eligible for permanent residency if the marriage was in good faith and was terminated by divorce.

Defendant's sister's testimony confirmed that E.A. complained during her marriage that defendant was not providing her with English lessons or helping her obtain a driver's license, and that defendant wanted his dinner ready when he came home from work. E.A. told her that on March 10, 2006, she had an argument with defendant and flipped the table over and screamed, causing the neighbor and then the police to arrive.

The upstairs neighbor testified that he heard yelling, crying, and screaming on March 10, 2006. He first went to defendant's apartment and spoke to defendant. He then called the police because defendant's explanation and conduct seemed suspicious. He had not heard this kind of noise in the apartment before then.

Catherine E. Warrick, an assistant professor of political science at Villanova University, testified for the State as an expert in Egyptian culture, comparative law, and gender issues as it relates to the Middle East. She provided testimony on the role of virginity in Egyptian culture, the severe social condemnation of a woman who experiences sexual intercourse outside of marriage, the effect of a woman's sexual misconduct on her social status and safety and that of her family, and the existence of honor killings. She explained that very few women in Egypt report sexual assaults because of the dishonor and shame to her and her family. A sexual assault by a husband is also not likely to be reported because it is considered shameful to discuss things that happened within the marital relationship in public. Under Egyptian law, forced sexual penetration by a husband against his wife is not considered a criminal sexual assault, although a severe assault could be prosecuted as a battery. Anal sex is considered shameful. Divorced women are at a social disadvantage in Egyptian society, and if the divorce resulted from abuse or marital discord, the woman might find it difficult to remarry. Warrick also described the differences in treatment of sexual assault victims in Egypt as contrasted to the United States, explaining the absence in Egypt of the organized support system available to victims here.

June Treston, a nurse practitioner in the Emergency Department at Cooper Hospital University Medical Center, testified for the State. The parties agreed that she did not testify as an expert witness but as a fact witness. She testified that she had substantial domestic violence training and lectured to nursing students on domestic violence. In the course of her work she conducted examinations of sexual assault victims, otherwise known as SANE exams.

The Prosecutor's Office had sent E.A. for an examination by Treston on September 26, 2006, over six months after the last alleged sexual assault. Treston testified that E.A. first complained about pain in her knee and then told Treston about the sexual assaults. In her testimony, Treston repeated the statements E.A. made to her about the sexual assaults and other behavior by defendant during the marriage. Notably, Treston's testimony alleged more sexual assaults than reported by E.A in her testimony. Treston said that E.A. told her that she had been vaginally and anally assaulted multiple times. Treston stated that E.A. told her "she was not allowed to seek medical attention, that she was told that - he had told her church group lies about her so she was embarrassed to seek support from, I think a mosque that she went to that I had documented, so there was more than just the physical and verbal altercation abuse." ...


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