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”.