Sexual Assault

Individuals charged with sexual assault or criminal sexual contact must do everything in their power to mount a vigorous and deliberate defense. Even if the charges may be false or overexaggerated, defendants in sexual assault cases face the possibility of losing their freedom and having their careers and reputations ruined. An experienced criminal defense lawyer can build a solid sexual assault defense to ensure the best possible outcome.

At Ellis Law, our legal team understands the gravity of sexual assault charges and how the legal system treats sexual assault differently than other crimes. Without this understanding, it is virtually impossible to construct a successful defense. Our knowledge and experience enable us to protect the rights of our clients and secure positive results.

How is Sexual Assault Different Than Other Crimes?

Sexual assault and criminal sexual contact are different than other crimes in multiple ways, including the following:

  • Consent determines whether a crime was committed
  • Because sexual acts often occur in private without witnesses, there may be scant evidence to prove or disprove consent
  • The degree of force or coercion alleged will influence the severity of the criminal charges
  • Registration as a convicted sex offender is likely to haunt a guilty defendant long after any penalty has been paid

The issue of consent in particular makes sexual assault unique. In most assault crimes, the legal system automatically assumes that the plaintiff did not consent. The legal system may consider the plaintiff’s character or behavior in deciding the issue of consent. Furthermore, laws are evolving with respect to the definition of force. It now includes various means of coercion beyond physical force.

Establishing a legal defense against sexual assault charges is also difficult because the laws pertaining to sex crimes are complex and continue to evolve. For example, the legal trend is toward viewing sexual assault more broadly as unwanted bodily invasion rather than just a traditional definition of rape. The changing landscape of sexual assault law is another reason why it is important for persons charged with sexual assault to seek professional legal counsel.

How is Sexual Assault Defined?

Each state has its own terminology for defining sexual assault and various sex crimes. Some states use the terms rape, sexual battery, or criminal sexual penetration, while others specify varying levels of criminality according to which body parts were involved. Broadly speaking, sexual assault is typically characterized by the act of penetrating some part of the body. However, penetration alone is not a crime unless it occurs by force, without consent, or when the plaintiff lacked the capacity to consent. In all cases, lack of consent turns the act into a crime. However, the definition of consent, or the ability to give consent, varies by state.

Many states also have laws against conduct that is sexual in nature but does not involve penetration if the act occurs without the plaintiff’s consent. Some states use the term sexual battery; in New Jersey, it is referred to as criminal sexual contact.

What are the Penalties for Sexual Assault?

States differ in the penalties they impose for sex crimes, ranging from probation to life in prison. Sentences vary according to type of force used, the degree of bodily injury, the age of the plaintiff, and the use of a gun or other deadly weapon. Felonies typically involve penetration, use of force, and/or bodily injury. Criminal sexual contact without the use of a weapon may be considered a misdemeanor.

Some states specify a minimum prison sentence or require the court to impose a prison sentence without probation. Individuals convicted of sexual assault must typically undergo psychological treatment while serving time in prison or when they are on probation. They are also required to register their name, address, and information about the crime to a publicly available sex offender registry. Every state in the country maintains a sex offender registry and notification program.

How Does New Jersey Define Sexual Assault?

Sexual assault crimes in New Jersey fall under the following categories:

  • First-degree offense: Aggravated sexual assault
  • Second-degree offense: Sexual assault
  • Third-degree offense: Aggravated criminal sexual contact
  • Fourth-degree offense: Criminal sexual contact

New Jersey uses the term sexual assault to describe the act of rape. NJSA 2c:14-1 defines sexual assault as the penetration, no matter how slight, in which physical force or coercion is used or in which a person is physically or mentally incapacitated. However, New Jersey also uses sexual assault to describe sexual touching, even over clothing, between a minor who is younger than 13 years old and a defendant who is at least four years older than the plaintiff. Sexual assault also includes sexual penetration between a minor who is 13, 14, or 15 years old and a defendant who is at least four years older than the plaintiff. Sexual assault is a second-degree crime carrying a penalty of up to 10 years in jail, in addition to fines.

According to NJSA 2c:14-2, aggravated sexual assault is an act of sexual penetration committed with another person under any of the following circumstances:

  • The plaintiff is less than 13 years old or is incapacitated
  • The plaintiff is at least 13 but less than 16 years old; and the actor has supervisory or disciplinary power over the plaintiff
  • The act is committed during robbery, homicide, or similar type of crime
  • The actor is armed with a weapon
  • The actor uses physical force or coercion and/or the plaintiff sustains severe personal injury

The wording of the law is gender neutral, using the terms actor and plaintiff to describe the individuals involved. Consent is a key element in the definition of sexual assault, whether aggravated or not. Lack of consent can be established in several ways:

  • Use of physical force
  • Coercion, which may include threats or some other action that makes the plaintiff too afraid to resist
  • If the plaintiff was a minor, under the influence of alcohol or drugs, or was in some other way incapacitated

What is Statutory Rape?

In the state of New Jersey, plaintiffs who are under the age of 13 are always considered unable to provide consent. Because this is written into the statue, this type of sexual assault is also referred to as statutory rape. An adult 18 years or older can be convicted of statutory rape if they have sex with someone under the age of 16, even if the plaintiff consented. The penalties will vary according to the ages of the plaintiff and the actor.

Sexual assault involving penetration is a felony, with a maximum 10-year prison sentence. A person convicted of aggravated sexual assault can receive a sentence of up to 20 years in prison. In most cases, New Jersey also requires actors convicted of sexual assault to register as sex offenders under Megan’s Law.

New Jersey Criminal Sexual Contact Law

Criminal sexual contact is a fourth-degree offense, described as intentional touching by actor, either directly or through clothing, of the plaintiff’s or actor’s intimate parts of the purpose of degrading or humiliating the plaintiff or sexually arousing or sexually gratifying the actor. The maximum sentence for this crime is 18 months in prison. The charge of aggravated criminal sexual contact is a third-degree offense. This charge may be filed under the following circumstances:

  • The actor is related to the plaintiff through blood or affinity to the third degree
  • Through their legal, occupational, or professional status, the actor has disciplinary or supervisory power over the plaintiff
  • The actor is a parent, family guardian, or stand-in loco parentis in the household

A conviction of aggravated criminal sexual contact can result in three to five years in state prison. In addition to potential jail time, a guilty plea or a conviction for either of these charges can expose an individual to Megan’s Law registration requirements, as well as community supervision for life.

Is Sexual Assault also a Federal Crime?

Sexual assault is also a federal crime. However, most sexual assault cases are tried in state courts. In general, only the more serious sexual assault cases warrant federal charges. These cases may involve human trafficking of children, exploitation of children in creating or distributing child pornography, or sexual crimes that cross state lines. If a child dies because of sexual abuse, the case may also be tried in federal court.

Can Someone Be Tried for the Same Crime at Federal and State Levels?

Depending on the specific circumstances of a sexual assault case, a defendant may be tried for the same crime at both the federal and state level. The U.S. Supreme Court has ruled that both state and federal courts can try and judge the same crime for different violations. If a crime is serious enough to be tried in federal court, it is likely to be tried in state court as well.

How Does a Lawyer Build a Successful Sexual Assault Defense?

Charges of sexual assault are always serious. A criminal defense lawyer must take many things into consideration to build a successful sexual assault defense. This includes the following:

  • Carefully reviewing and analyzing all circumstances of the case
  • Anticipating all possible arguments used by the prosecution
  • Evaluating all possible arguments for defense
  • Considering previous decisions of the court, including the disposition of the judge that will be hearing the case

After weighing all these factors and more, a criminal defense lawyer will then chart the best course of action, which may include the following:

  • Move to have the case dismissed
  • Settle out of court
  • Seek full exoneration in the courtroom

Attorneys may choose to move to have the case dismissed if they can demonstrate that charges were not brought properly. If guilt appears obvious, a criminal defense lawyer may seek to have the penalties reduced. This can mean the difference between months or years in prison or serving at least part of the sentence as probation.

Legal Strategies for Mounting a Sexual Assault Defense

One legal strategy in sexual assault cases is to demonstrate that consent was given before the act took place. However, this is not always the best approach. Proving consent is complicated if the act occurred in private and without any video or audio evidence from a cell phone or security camera. Even if the actor and the plaintiff engaged in prior consensual acts, it can be difficult to prove without a doubt that this particular act was also consensual. The specific circumstances of the case will determine the optimal course of action. Other legal strategies for mounting a sexual assault defense include the following:

Establishing innocence. Defendants are innocent until proven guilty. It may be possible to use Facebook check-ins, text messages, phone call records, credit card receipts, or other time-stamped data to establish an alibi. For example, the plaintiff may have been under the influence of alcohol and misidentified the actor. DNA, hair, fingerprints, or other similar evidence may suggest that someone else committed the crime. A criminal defense attorney needs only to convince the jury that there is a reasonable doubt of guilt to get an acquittal.

Suppressing evidence or showing it is inadmissible. There may be a legal argument for suppressing incriminating evidence. Sometimes it is possible to have evidence thrown out altogether, such as when an undercover police officer is posing as a minor on the internet and the defendant engages in online conversations. Evidence obtained in this way may not be legally admissible.

Claiming insanity or mental incapacity. Defendants who have a mental condition that prevent them from understanding the criminal nature of their actions may be able to claim insanity or mental incapacity.

If the plaintiff is young, some defendants may want to argue that they thought the individual was older. However, mistake of age is not a valid defense in the state of New Jersey, as decided in State v. Moore, 253 A.2d 579 (1969).

New Jersey Criminal Defense Lawyers at Ellis Law Defend Those Accused of Sexual Assault

If you are facing sexual assault charges, you are innocent until proven guilty. The New Jersey criminal defense lawyers at Ellis Law are skilled at mounting a strong defense against sexual assault charges and will work vigorously to protect your right to a fair trial. You cannot be convicted unless allegations are proven beyond a reasonable doubt. We have the skills and resources to help you move forward. To get started, contact us today at 732-308-0200 or contact us online. Located in Freehold, New Jersey, we serve clients throughout East Brunswick, Toms River, Middletown, Jersey City, Neptune, Hudson County, Union County, Essex County, and Ocean County, as well as Brooklyn and New York, New York.