State In The Interest Of M.T.S.

129 N.J. 422, 609 A.2d 1266 (1992)

Facts

Fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. (D) and his girlfriend. Ten people resided in the three-bedroom town-home at the time of the incident. D was seventeen and was temporarily residing at the home with the permission of the C.G.'s mother; D slept downstairs on a couch. C.G. had her own room on the second floor. C.G. went upstairs to sleep after having watched television with her mother, D, and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. C.G. stated that D had told her three or four times that he 'was going to make a surprise visit up in [her] bedroom. She testified that she thought D was joking, but D 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. She awoke to use the bathroom, and she saw D fully clothed, standing in her doorway. D 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. C.G. woke up with D on top of her, her underpants and shorts removed. She said, 'his penis was into [her] vagina.' She said, she immediately slapped D once in the face, then 'told him to get off [her], and get out.' She did not scream or cry out. She testified that D complied in less than one minute after being struck; according to C.G., 'he jumped right off of [her].' D 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.' D engaged in intercourse with her 'without [her] wanting it or telling him to come up [to her bedroom].' She was not otherwise harmed by D. She told her mother and D was told to leave. A complaint was filed with the police. D's story was very different and that they were kissing and necking and had discussed having sexual intercourse. He said C.G. repeatedly had encouraged him to 'make a surprise visit up in her room.' D said as soon as C.G. 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. D and C.G. proceeded to engage in sexual intercourse. D thrust 3-4 times and C.G. pushed him off, she said 'stop, get off,' and he 'hopped off right away.' 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.' D 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. D was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim. D was adjudicated, delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with D. 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. 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 reversed, and the P appealed.