Criminal Law Class Notes 10/21/03


State of New Jersey in the Interest of M.T.S.


We’re finishing off the actus reus section of the rape chapter.  This case represents the further any court has gone to expand what could constitute forcible rape.  If Alston is the starting point, then M.T.S. is the other end of the continuum.


Note that M.T.S. was unanimous.  Remember Dressler’s “yin and yang” comment.  Given how far this case takes rape, wouldn’t we expect that at least one judge would disagree?


No other court has yet followed New Jersey’s lead, but some states have rewritten their statutes to be more in line with the M.T.S. court.


This is a classic he said, she said story.  What happened according to the alleged victim?  She awoke to find him sexually penetrating her and forcibly made him stop.


He says that they consented to sexual activity and that she never went to sleep.  He does acknowledge that she slapped him and that immediately afterwards the sexual act ended.


So we have two versions of the facts.  In a perfect world, we want to see the witnesses.  But Dressler says that most classes feel predominantly that M.T.S. is more believable than C.G.


Note that this is a juvenile case.  In these cases, there is frequently no right to trial by jury.  Therefore, this is a bench trial.


When juries go into deliberation, we don’t know what facts they believed.  However, we are told in this case what the trial judge believed and didn’t believe.  Who did the judge believe on the facts?  The judge didn’t believe either person fully.  The judge found that C.G. was not asleep and consented to petting but did not consent to intercourse.  The latter is the key finding of fact.


The New Jersey statute


The New Jersey sexual assault statute is different from common law rape and rape under the Model Penal Code.


·        “Sexual assault” is the reformist label that has been attached to the crime that used to be called “rape”.

·        This statute doesn’t require severe personal injury in order to sustain a sexual assault conviction.

·        The statute does not use the word “consent” or the phrase “without consent”.  Instead, the statute uses the word “coercion”.  Why might the statute use the word “coercion” rather than the phrase “without consent”?  The feminist critique was that too much time was being spent putting the woman on trial, and that instead the defendant should be put on trial.

·        The spousal immunity rule is eliminated.  Husbands are not protected from being convicted of sexual assault against their wives.  A husband who committed the same acts stated in this case against his wife would be just as guilty as M.T.S.

·        The gender of the victim, and arguably the perpetrator is not specified in the statute.

·        The statute says “penetration” rather than “intercourse”.  At common law, vaginal intercourse was the only conduct that constituted rape.  Therefore, all other forms of sexual penetration fell outside the rape statute and there had to be another crime to deal with it.[1]


Do four “penetrations” constitute four different counts of rape?  From a defendant’s perspective, that’s a huge issue.  The case law has wrestled with this problem.


For example, let’s say a robber robs four different registers at one store.  Is that one count of robbery or four?


What if someone steals envelopes from the post office?  He is guilty of stealing one bag (one count) or 400 counts of theft?  Isn’t that a big difference?


What if someone steals your wallet?  Is taking the whole wallet at one time one count or multiple counts?


Part of the answer is found in legislative intent: who do we consider to be the victim?  How many victims were affected?  If you rob four cashiers, is each cashier a victim, or is the store the victim?


In M.T.S., we only have one victim.  On the other hand, the case law makes the distinction between one transaction and multiple transactions.  If the defendant penetrated the victim, left for an hour, came back, and penetrated the victim again, that would be two different counts.


Could there be rape where penetration was made by consent but the withdrawal of the penetration did not follow immediately after the withdrawal of consent?  Courts and authorities are split.


The defense acknowledged that the intercourse was non-consensual.  However, the defense still argues that the conduct does not constitute sexual assault.  The defense argues that there must be force other than the sexual penetration itself.  The New Jersey Supreme Court disagrees, finding that the non-consensual sexual act itself constituted the necessary force.


So what is the new rule of sexual assault in New Jersey?  In other words, if I’m going to have sex, how can I make sure I won’t be prosecuted?  The court says that you must get “freely given affirmative permission” to engage in the sexual penetration.  Unless a party gets such permission, the mere act of sexual penetration constitutes the force required under the definition of the crime.


We’ve gone from Alston to Estrich’s “no means no” to “silence means no”.


If you don’t get permission, it’s sexual assault.


What constitutes freely given permission?  What would be the impact of alcohol, for example?  The New Jersey court hasn’t dealt with this yet.


What about if you ask over and over again for sex?  Should the “wall come down” as soon as the first “no” occurs?  What’s the impact on “romance”?  Can you whine and nag for sex?  If you did, would the permission be “freely given”?


Statutory interpretation


Did this court interpret the statute correctly?  Is this a good decision as a matter of public policy?  It may be suggested that the court has gone beyond the plain meaning of the statute.  Why did the legislature include the words “physical force”?  If the legislature meant what M.T.S. says it meant, how would they have said it?  Why didn’t the legislature just use the language that the court itself uses?


Hasn’t this court taken out the “physical force” requirement and put with “without consent”?  The legislative history suggests that part of the point of the statute was to take the focus off the alleged victim.  The court seems to potentially put the focus back on the victim.


Dressler has not found a single scholar who has found that the Supreme Court of New Jersey got the statutory interpretation right.


Does “without consent” necessarily mean “against one’s will”?  When we ask whether something was done without consent, aren’t we inquiring into an internal state of mind of the alleged victim?




Dressler says that permission is an “externalized” form of consent.


In New Jersey, permission can only be given by acts or statements.  Permission cannot be given by omission.  Permission must be externalized.


Is this a good way to define criminal sexual assault?  How could the defendant prove that the alleged victim gave permission?  Imagine how humiliating the trial has just become!  But how else can the defendant defend himself?  This sends a message to women about whether they want to bring charges.  The Kobe Bryant case shows just how embarrassing a rape prosecution can be to a woman.


M.T.S. stands alone.  We don’t know what it means, and we don’t know what other states might argue it.


In fact, how did this case get to the prosecutor?  We suspect that the mother may have gotten upset, even if the facts were the way M.T.S. claimed they were.  The mother may have had a misunderstanding of the law such that she had no idea that this would become a rape case.  Would the mother have ever brought this case if the mother knew how the prosecutor intended to use it?


Under what circumstances will a female be willing to come forward?  What are the chances that a wife will bring a case of marital rape to a prosecutor other than in the context of a marriage breaking up?  What kind of case will this statute be used for as a practical matter?


“Freely given”


Consider the Schulhofer hypothetical in Note 4, p. 404.  A man threatens to kick a woman out of the house if they don’t have sex more often.  Is her permission freely given?  Did the man make an ultimatum?  What could the man have done differently?  Isn’t it necessary that he doesn’t have sex with the woman anymore?  Should the guy just kick her out?  Should the law give her a choice?


Also consider the Antioch Sexual Offense Policy.  Yeah, consider it.


What if a woman traded sex for grades?  Was her permission freely given?  Is there unequal bargaining power?  Does it depend on whether there is any harm from not giving permission?  Is there a difference between a “threat” and an “offer”?


Is it for the law to say how much a woman should value her sexual autonomy?  How much do we value freedom?  How much do we value allowing people to make choices that will hurt them?


Schulhofer made the argument that the question should be whether the ultimatum was lawful or unlawful.  A lawful ultimatum results in freely given permission.  It’s perfectly lawful for a man to kick anyone he wants out of his house.  On the other hand, a professor is in the wrong if he offers to raise a grade if a student has sex with him.


Back to Class Notes

[1] Should there be a different statute to protect the right of a woman to determine when to get pregnant?  Not all of these activities may result in pregnancy.  Common law rape explicitly could result in pregnancy.