Any act of sexual penetration engaged in by defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J. Stat. Ann. § 2C:14-2c(1) if defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.
The trial court determined that defendant juvenile was delinquent for committing a sexual assault. The trial court's decision was based on evidence that defendant and a fifteen-year-old girl engaged in consensual kissing and thereafter in actual sexual penetration of the girl to which she had not consented. The appellate court reversed, concluding that the nonconsensual penetration did not constitute sexual assault because it was not accompanied by some level of force more than that necessary to accomplish the penetration.
Is the element of "physical force" met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result?
The court held that any act of sexual penetration engaged in by defendant without the affirmative and freely given permission of the victim to the specific act of penetration constituted the offense of sexual assault. The court held that permission could be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. The court found that the record reasonably supported the trial court's conclusion that the victim had not expressed consent to the act of intercourse, either through her words or actions.