State
of
Supreme
Court of
129
N.J. 422, 609 A.2d 1266.
Dressler,
pp. 394-403
Facts: Two teenagers had
intercourse. Their testimony differed on
many facts. It generally appeared,
however, that the intercourse was non-consensual and was accomplished without
the use of force as “traditionally” defined.
The defendant was tried and found delinquent for second-degree sexual
assault, but the delinquency was reversed on appeal. The State appealed to the Supreme Court of
New Jersey.
Issue: Is any force required
besides the force of sexual intercourse itself to find the defendant delinquent
for second-degree sexual assault?
Rule: NEW RULE! “[A]ny act of sexual penetration engaged
in…without the affirmative and freely-given permission of
the victim…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.”
Analysis: Having announced the new
rule as an interpretation of
The
court focuses on the defendant’s conduct and rejects any judgment passed upon
the victim except as it pertains to the actions of the defendant.
If
the evidence shows beyond a reasonable doubt that the defendant knew that
the sexual penetration was accomplished without freely given affirmative
permission, then the defendant should be found guilty.
If
the evidence shows beyond a reasonable doubt that the defendant believed
that the sexual penetration was accomplished with freely given
permission, then the factfinder must consider whether, given the totality of
the evidence, that belief was reasonable.
The
trial court found that the victim did not consent to the sexual
penetration. The court seems to find
this sufficient to say that she did not freely give permission for the sexual
penetration. The court refuses to
interfere with the factfinder.
Conclusion: The delinquency finding is
reinstated.
Notes
and Questions
1. It would seem
that Berkowitz’s conduct would constitute rape under M.T.S. because it
was non-consensual sex. On the other
hand, M.T.S.’s conduct would not seem to constitute rape under Berkowitz. I’m strongly invited to prefer the M.T.S.
approach as a matter of social policy. I’m
worried, though, that these are close cases and broadening the definition of
rape will have a chilling effect on positive intimate sexual relationships. This is all getting dangerously close to
saying that sex is inherently bad, or it is presumed bad, or that it is
presumed that nobody wants it just like nobody wants to get robbed or beat up.
2. The court
suggests that permission, unlike consent, can be non-verbal and can be inferred
from the totality of the evidence. The court
recognizes that most non-criminal sex occurs without explicit verbal consent,
and thus it would be bad policy to require such explicit consent as opposed to
the somewhat broader “freely given affirmative permission”.
3.