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Sexual assault is as an act of sexual penetration in which the actor uses physical force or coercion, but the victim does not sustain severe personal injury

Law Lessons from E.A.S. V. D.S., App. Div., A-3674-10T1, July 2, 2012:

N.J.S.A. 2C:14-2(c)(1) defines sexual assault as an act of sexual penetration in which “[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury.”

In State in the Interest of M.T.S., 129 N.J. 422, 448 (1992), the Supreme Court described the proof necessary to sustain a conviction for this offense, writing “the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim.” Thus, although the statute states that it is unnecessary to prove the victim sustained “severe personal injury,” in fact, no evidence of injury is required to prove sexual assault.

N.J.S.A. 2C:12-1(a)(1) states in pertinent part that a “person is guilty of assault if he . . . purposely, knowingly or recklessly causes bodily injury to another[.]” “Bodily injury” is defined as “physical pain, illness or any impairment of physical condition[.]” N.J.S.A. 2C:11-1(a).

Because of the difference in their elements, simple assault is not a lesser-included offense of sexual assault. See N.J.S.A. 2C:1-8(d).

In State v. Queen, 221 N.J. Super. 601, 606 (App. Div.), certif. denied, 110 N.J. 506 (1988), the court stated,

Simple assault . . . has . . . an element missing from the proof required to establish sexual assault or criminal sexual contact, that is, the element of bodily injury, either caused or attempted to be caused in the commission of the offense. . . . Bodily injury . . . may occur but need not necessarily occur in a sexual assault or criminal sexual contact. Thus, under the plain language of N.J.S.A. 2C:1-8[(d)](1), simple assault is not an included offense of sexual assault or criminal sexual contact, because it is not established “by proof of the same or less than all the facts required to establish” either offense charged against defendant by indictment; rather, it requires proof of the additional element of bodily injury or of an attempt to cause it.

See also State v. Triestman, 416 N.J. Super. 195, 221 (App. Div. 2010).


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