A5639

An Act concerning sexual assault and amending N.J.S.2C:14-1 and N.J.S.2C:14-2.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:14-1 is amended to read as follows:

2C:14-1. Definitions. The following definitions apply to this chapter:

[a.] “Actor” means a person accused of an offense proscribed under this act[;] .

“Coercion” as used in this chapter shall refer to those acts which are defined as criminal coercion in paragraphs (1), (2), (3), (4), (6), and (7) of N.J.S.2C:13-5.

“Intimate parts” means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.

“Mentally incapacitated” means that condition in which a person is rendered temporarily incapable of understanding or controlling the person’s conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance, or due to an act committed upon that person which rendered the person incapable of appraising or controlling the person’s conduct.

“Physically helpless” means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act.

“Severe personal injury” means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain.

“Sexual contact” means an intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with the actor’s intimate parts must be in view of the victim whom the actor knows to be present.

“Sexual penetration” means vaginal intercourse, cunnilingus, fellatio, or anal intercourse between persons, or insertion of a hand, a finger or an object into the anus or vagina either by the actor or upon the actor’s instruction. The depth of insertion shall not be relevant as to the question of commission of the crime.

[b.] “Victim” means a person alleging to have been subjected to offenses proscribed by this act[;

c. "Sexual penetration" means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime;

d. "Sexual contact" means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present;

e. "Intimate parts" means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person;

f. "Severe personal injury" means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain;

g. "Physically helpless" means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act;

h. (Deleted by amendment, P.L.2011, c.232)

i. "Mentally incapacitated" means that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling his conduct;

j. "Coercion" as used in this chapter shall refer to those acts which are defined as criminal coercion in section 2C:13-5(1), (2), (3), (4), (6) and (7)].

(cf: P.L.2011, c.232, s.3)

2. N.J.S.2C:14-2 is amended to read as follows:

2C:14-2. Sexual assault.

a. Aggravated sexual assault. Aggravated sexual assault is a crime of the first degree.

An actor is guilty of aggravated sexual assault if the actor commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The victim is less than 13 years old;

(2) The victim is at least 13 but less than 16 years old; and

(a) The actor is related to the victim by blood or affinity to the third degree, or

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or

(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, carjacking, kidnapping, homicide, aggravated assault on the victim or a person other than the victim, burglary, arson, or criminal escape;

(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5) The actor is aided or abetted by one or more other persons and the actor commits the act using coercion or without the victim's affirmative and freely-given permission;

(6) The actor commits the act using coercion or without the victim's affirmative and freely-given permission and severe personal injury is sustained by the victim; or

(7) The victim, at the time of sexual penetration, is one whom the actor knew or should have known [was]:

(a) was physically helpless or incapacitated;

(b) was intellectually or mentally incapacitated; or

(c) had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the distinctively sexual nature of the conduct, including, but not limited to, being incapable of providing consent, or incapable of understanding or exercising the right to refuse to engage in the conduct.

[Aggravated sexual assault is a crime of the first degree.]

Except as otherwise provided in subsection d. of this section, a person convicted under paragraph (1) of this subsection shall be sentenced to a specific term of years which shall be fixed by the court and shall be between 25 years and life imprisonment of which the person shall serve 25 years before being eligible for parole, unless a longer term of parole ineligibility is otherwise provided pursuant to this Title.

b. Sexual assault via sexual contact. Sexual assault is a crime of the second degree.

An actor is guilty of sexual assault if the actor commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.

c. Sexual assault via sexual penetration. Sexual assault is a crime of the second degree. An actor is guilty of sexual assault if the actor commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor commits the act using coercion or without the victim's affirmative and freely-given permission, but the victim does not sustain severe personal injury;

(2) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

(3) The victim is at least 16 but less than 18 years old and:

(a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or

(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim; or

(5) The victim is a pupil at least 18 but less than 22 years old and has not received a high school diploma and the actor is a teaching staff member or substitute teacher, school bus driver, other school employee, contracted service provider, or volunteer and the actor has supervisory or disciplinary power of any nature or in any capacity over the victim. As used in this paragraph, “teaching staff member” has the meaning set forth in N.J.S.18A:1-1.

[Sexual assault is a crime of the second degree.]

d. Notwithstanding the provisions of subsection a. of this section, where a defendant is charged with a violation under paragraph (1) of subsection a. of this section, the prosecutor, in consideration of the interests of the victim, may offer a negotiated plea agreement in which the defendant would be sentenced to a specific term of imprisonment of not less than 15 years, during which the defendant shall not be eligible for parole. In such event, the court may accept the negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term of imprisonment or parole or a lesser period of parole ineligibility than that expressly provided in the plea agreement. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding a negotiated reduction in the term of imprisonment and period of parole ineligibility set forth in subsection a. of this section.

(cf: P.L.2019, c.474, s.1)

3. This act shall take effect immediately.

STATEMENT

This bill clarifies that the fact that an alleged victim of sexual assault was voluntarily incapacitated at the time of the assault does not bar a prosecution for aggravated sexual assault or sexual assault.

Aggravated sexual assault is a crime of the first degree. A crime of the first degree is punishable by a term of imprisonment of 10 to 20 years, a fine of up to $200,000, or both. Sexual assault is a crime of the second degree. A crime of the second degree is punishable by a term of imprisonment of five to 10 years, a fine of up to $150,000, or both.

Currently, New Jersey uses an affirmative consent standard for sexual assault prosecutions. The New Jersey Supreme Court has held that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the alleged victim to the specific act of penetration constitutes the offense of sexual assault. State in Interest of M.T.S., 129 N.J. 422 (1992). The Legislature codified this holding in 2020 with the enactment of P.L.2019, c.474. In 2021, the New Jersey Supreme Court reaffirmed its support of M.T.S. in C.R. v. M.T., 248 N.J. 428 (2021). Because New Jersey requires affirmative consent, it is not a bar to prosecution for aggravated sexual assault or sexual assault that an alleged victim who had voluntarily consumed alcohol or drugs was unable to or did not refuse sexual intercourse.

To better reflect current law, this bill removes potentially ambiguous language, specifically the phrase “without his prior knowledge or consent,” from the definition of “mentally incapacitated” for purposes of the definition of aggravated sexual assault. In addition, the bill makes technical and grammatical changes to enhance readability.

This bill is in response an alleged sexual assault that took place at Cornell University in 2024, in which the victim had voluntarily consumed drugs and alcohol before the sexual assault.