In this recent NJ criminal defense appeal, the defendant successfully argued that if there is no contact with a victim in a sex offense, there cannot be liability for more than a NJ disorderly persons offense.
State v. J.L., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 239 (December 17, 2010) – Dismissal of indictment for criminal sexual contact affirmed.
“We must interpret provisions of New Jersey’s Code of Criminal Justice (the Code) to determine whether a defendant who knowingly masturbates within view of a non-consenting adult has committed criminal sexual contact in violation of N.J.S.A. 2C:14-3b, a crime of the fourth degree, or only the disorderly persons offense of lewdness in violation of N.J.S.A. 2C:14-4…. Masturbation in view of a non-consenting adult can constitute a violation of the lewdness statute…. Conversely, a person’s touching his own intimate parts within view of a non-consenting adult is not sufficient to prove criminal sexual contact. Sexual contact requires proof that the touching occurred ‘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, if defendant was merely ‘adjusting himself’ without the requisite purpose, he would not be guilty of fourth-degree criminal sexual contact. Such conduct might fit the language of the lewdness statute…. We hold that where a defendant’s sexual contact is with his own intimate parts in view of an adult victim, conviction on a charge of criminal sexual contact under N.J.S.A. 2C:14-3b and 2C:14-2c(1) requires proof of physical force or coercion beyond defendant’s act of touching himself. Without such evidence, defendant’s conduct does not prove all the essential elements of fourth-degree criminal sexual contact.”