Summary of State of NJ:  In the Interest of MTS, S. Ct of New Jersey, 1992

Facts: MTS was an 18 year old male living, with his girlfriend, for five days, in the home of victim’s family.  Victim was 15.  Around 1:30 a.m., in victim’s room, they engaged in consensual kissing and heavy petting, then actual sexual penetration which she had not consented to.

Issue: Whether the element of physical force is met simply by an act o f non-consensual penetration involving no more force than necessary to accomplish that result?

Holding: Yes.

Procedure: Trial ct. determined guilt of juvenile delinquent for committing sexual assault.  App. Ct.  Reversed the delinquency(non-consensual penetration does not equal s. ass. without some level of force more than necessary to accomplish penetration.)  Reversed.

Rule: A person who commits an act of sexual penetration using physical force or coercion is guilty of second degree sexual assault.  The actor uses physical force or coercion, but the victim does not sustain severe physical injury.

Ct. Rationale: When a statute is open to interpretation the legislature’s intent and the history of the offense clarifies the ambiguity.  The legislature did not endorse the MPC crime of rape. Where the victim was unable resist the force incident to penetration was deemed sufficient to establish the force element of the crime.  The crime of rape is a forcible assault upon a person’s privacy and body control.  Permission to engage in sexual penetration must be affirmative and it must be freely given.  That permission may be inferred from the surrounding circumstances. Physical force in excess of the act of sexual penetration fulfills the element of force.  The trial court concluded that the victim had not expressly consented to the act of intercourse, either through words or actions.

PLA: Defendant used physical force which involved the involuntary sexual touching, with a lack of consent from the victim.

Def A: The defendant did not use any force to overcome the lack of consent.