Case

Did He Use Force to Rape?

State in the Interest of M.T.S.

609 A.2d 1266 (N.J. 1992)

The trial court determined that M.T.S., a juvenile, was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that nonconsensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. The New Jersey supreme court granted the State's petition for certification to review the law regarding the element of force in rape. The supreme court reversed.

HANDLER, J.

Facts

On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of C.G.’s mother; he slept downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager’s testimony.

C.G. stated that earlier in the day, M.T.S. had told her three or four times that he “was going to make a surprise visit up in her bedroom.” She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.

C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that “he was going to tease [her] a little bit.” C.G. testified that she “didn’t think anything of it”; she walked past him, used the bathroom, and then returned to bed, falling into a “heavy” sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said “his penis was into [her] vagina.” As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then “told him to get off [her], and get out.” She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., “he jumped right off of [her].” She said she did not know how long M.T.S. had been inside of her before she awoke.

C.G. said that after M.T.S. left the room, she “fell asleep crying” because “[she] couldn’t believe that he did what he did to [her].” She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was “scared and in shock.” According to C.G., M.T.S. engaged in intercourse with her “without [her] wanting it or telling him to come up [to her bedroom].” By her own account, C.G. was not otherwise harmed by M.T.S.

At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to “get [him] out of the house.” While M.T.S. was out on an errand, C.G.’s mother gathered his clothes and put them outside in his car; when he returned, he was told that “[he] better not even get near the house.” C.G. and her mother then filed a complaint with the police.

According to M.T.S., he and C.G. had been good friends for a long time, and their relationship “kept leading on to more and more.” He had been living at C.G.’s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been “kissing and necking” and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she “didn’t want him to, but she did after that.” He said C.G. repeatedly had encouraged him to “make a surprise visit up in her room.”

M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.’s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began “kissing and all,” eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he “stuck it in” and “did it [thrust] three times, and then the fourth time [he] stuck it in, that’s when [she] pulled [him] off of her.” M.T.S. said that as C.G. pushed him off, she said “stop, get off,” and he “hopped off right away.”

According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a backhand to his face. He recalled asking C.G. what was wrong a second time, and her replying, “how can you take advantage of me or something like that.” M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., “I’m leaving . . . I’m going with my real girlfriend, don’t talk to me . . . I don’t want nothing to do with you or anything, stay out of my life . . . don’t tell anybody about this . . . it would just screw everything up.” He then walked downstairs and went to sleep.

On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:142c(1). . . .

Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed the juvenile’s adjudication of delinquency for that offense.

Opinion

The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.

Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second degree sexual assault. The sexual assault statute does not define the words “physical force.” The question posed by this appeal is whether the element of “physical force” is met simply by an act of nonconsensual penetration involving no more force than necessary to accomplish that result.

That issue is presented in the context of what is often referred to as “acquaintance rape.” The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.

The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that nonconsensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration.

The New Jersey Code of Criminal Justice, N.J.S.A. 2C:142c(1), defines “sexual assault” as the commission “of sexual penetration” “with another person” with the use of “physical force or coercion.” An unconstrained reading of the statutory language indicates that both the act of “sexual penetration” and the use of “physical force or coercion” are separate and distinct elements of the offense. Neither the definitions section of N.J.S.A. 2C:141 to 8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words “physical force.” The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that “physical force” had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.

The parties offer two alternative understandings of the concept of “physical force” as it is used in the statute. The State would read “physical force” to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of “physical force” to mean force “used to overcome lack of consent.” That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration. . . .

. . . Pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant’s conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant’s actions as on the nature of the victim’s response. “If a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault.” Under the prereform law, the resistance offered had to be “in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory.” That the law put the rape victim on trial was clear. . . .

The New Jersey Code of Criminal Justice [reformed the law of rape in 1978. Among other things, it changed the name of rape to “sexual assault,” extended the range of penetrations included in the definition of sexual assault, and made sexual assault gender neutral]. The Code does not refer to force in relation to “overcoming the will” of the victim, or to the “physical overpowering” of the victim, or the “submission” of the victim. It does not require the demonstrated nonconsent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.

The Legislature’s concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as “the unlawful application of force to the person of another.” 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Id. at 30102. Any “unauthorized touching of another [is] a battery.” Perna v. Pirozzi, 92 N.J. 446, 462, 457 A.2d 431 (1983). Thus, by eliminating all references to the victim’s state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse between a man and a woman but a range of acts that invade another’s body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery. . . . We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed nonconsent.

We note that the contrary interpretation of force—that the element of force need be extrinsic to the sexual act—would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using “physical force” or “coercion.” N.J.S.A. 2C:143(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.

Because the statute eschews any reference to the victim’s will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim’s state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the 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.S.A. 2C:142c(1) if the 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. . . .

Our understanding of the meaning and application of “physical force” under the sexual assault statute indicates that the term’s inclusion was neither inadvertent nor redundant. The term “physical force,” like its companion term “coercion,” acts to qualify the nature and character of the “sexual penetration.” Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of “physical force” encompasses the notion of “unpermitted touching” derived from the Legislature’s decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving “sexual penetration,” the term “physical force” serves to define and explain the acts that are offensive, unauthorized, and unlawful. . . .

Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See “Definition of Forcible Rape,” Va.L.Rev. (arguing that “forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person’s bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature”).

We emphasize as well that what is now referred to as “acquaintance rape” is not a new phenomenon. Nor was it a “futuristic” concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Acquaintance Rape, supra, at 10. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s.

The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform. . . .

The Appellate Division was correct in recognizing that a woman’s right to end intimate activity without penetration is a protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman’s unequivocally-expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim’s will is overcome, and thus to reintroduce the requirement of nonconsent and victim resistance as a constituent material element of the crime. Under the reformed statute, a person’s failure to protest or resist cannot be considered or used as justification for bodily invasion.

We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court’s disposition.

Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second degree sexual assault. For reversal and reinstatement—Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7. Opposed—None.

Questions for Discussion

1. List all of the facts relevant to determining whether M.T.S. satisfied the intrinsic force element of the New Jersey sexual assault statute.

2. Summarize the reasons the court gives for adopting the intrinsic force standard.

3. Taking into account the facts, decision, and reasoning of Commonwealth v. Berkowitz, which do you think is the better approach to the force requirement—intrinsic or extrinsic force? Defend your answer.

4. Should legislatures or courts decide whether to adopt the intrinsic or extrinsic force standard? Defend your answer.