Written by attorney Jef D Henninger

Defending a charge of sexual assault involving minors in New Jersey

In New Jersey, sexual assault 2C:14-2b is a crime of the second degree. Clearly, there is a serious crime when adults are involved. However, it has been misused when juveniles are involved. What may have been dealt with between parents years ago has now been escalated to prosecution. When defending a juvenile charged with sexual assault in New Jersey, the same defenses that apply to adults also apply to juveniles. However, the curiosity defense should be explored as that may be the easiest defense to utilize.

In order to understand the defense, you must understand the crime. N.J.S.A. 2C:14-2(b) provides that "[a]n actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." Sexual contact is defined as:

[A]n intentional touching by the victim or actor either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. N.J.S.A. 2C:14-1d. Thus, the of sexual assault are: (1) a victim less than thirteen years old; (2) an actor four years older than the victim; (3) an intentional touching of intimate parts; and (4) a purpose of degrading or humiliating the victim or sexually arousing or gratifying the actor. Its that last factor where the curiosity defense comes into play.

In State ex rel. G.B., 365 N.J. Super. 179, 185 (App. Div. 2004), the Appellate Division indicated that the curiosity defense was found to be valid to charges of sexual assault in New Jersey involving juveniles. G.B. involved a 12 year old who was accused of touching a four year old's vagina. Once the child disclosed the touching to her mother, the mother took her to the pediatrician. Finding nothing, the doctor referred her to the emergency room. At the same time, the mother called the police. However, when the police came, the detective only questioned the parents. The detective later tried to interview the child but the child would not cooperate. Finally, about two months later, the child cooperated for a video taped interview. At trial, the four year old gave conflicting statements and had a difficult time answering questions. Nevertheless, the trial judge found G.B. guilty of sexual assault. He relied primarily on the video taped interview and found that the child was not unduly influenced. G.B. then appealed.

In reviewing the case, the Appellate Division indicated that the State must prove beyond a reasonable doubt that the "intentional touching must be for at least one of four purposes: either degrading or humiliating the victim, or sexually arousing or sexually gratifying the defendant-actor. The Appellate Division looked through the entire record and could not find any evdience to prove beyond a reasonable doubt the fourth element of sexual arousal/gratification or the victim's degradation/humiliation. More importantly, the trial judge didn't even make a finding that G.B. acted with a purpose to degrade or humiliate the four year old victim or to sexually arouse or gratify himself.

In fact, the trial judge found the opposite. The trial judge stated that it was "unfortunate incident". He also indicated that it "some type of a curiosity thing". Nevertheless, the trial court found that it was inappropriate conduct. However, the Appellate Division found that inappropriate conduct, by itself, is not criminal. As a result, the State failed to prove the fourth element and the conviction had to be reversed.

The Appellate Division once again relied upon another version of this defense in State ex rel DW, 381 N.J. Super 516. In D.W., a fourteen year old was charged with harassment for touching the buttocks of a female classmate or unknown age. Three months later, the charges were upgraded to fourth degree criminal sexual contact. Note that although this was not a sexual assault case, it would have been if the age element had been met. Thus, the analysis is the same. At trial, the juvenile defendant was found guilty.

The Appellate Division found that there was sufficient evidence to support the trial court's findings that D.W. touched the victim's buttocks. However, the victim's assertion that she was embarrassed is not sufficient to support a finding that D.W. touched the victim with a purpose to "humiliate or degrade" her. Thus while not claiming that this is curiosity, the Appellate Division found that this was nothing more than "inappropriate horseplay between schoolmates".

Thus, whether its called curiosity, experimenting or horseplay, this line of defense should be explored in all cases where the defendant and victim are juveniles.

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