First or Second Degree Sexual Assault Conviction Turns On “Severe Personal Injury” To Victim
- February 2, 2014
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In 2005, O.M., a 32 year old woman, first disclosed that she was sexually abused by her stepfather, R.P. when she was a child. R.P. was convicted of first-degree aggravated sexual assault by committing an act of sexual penetration with O.M. when she was at least 13 but less than 16 and related to O.M. by affinity (N.J.S.A. 2C:14-2(a)(2)(a)) and defendant stood in loco parentis within O.M.’s residence (N.J.S.A. 2C:14-2(a)(2)(c)); first-degree aggravated sexual assault by commission of an act of sexual penetration with O.M. while using physical force or coercion, and O.M. received severe personal injury (N.J.S.A. 2C:14-2(a)(6)) and second-degree aggravated sexual assault by committing an act of sexual penetration with O.M. while she was at least 16 but less than 18 (N.J.S.A. 2C:14-2(c)(3)). An additional count of first-degree aggravated sexual assault by committing an act of sexual penetration on a minor under thirteen (N.J.S.A. 2C:14-2(a)(1)) was dismissed. Upon conviction, R.P. received two concurrent 18 year prison terms with a 9 year period of parole ineligibility and a concurrent 8 year prison term with a 4 year parole disqualifier. O.M. testified that R.P. began molesting her when she was 12 years old, initially by performing oral sex on her or penetrating her digitally. Later, the abuse by R.P. progressed to sexual intercourse without condoms with physical force over O.M.’s objections. The regular assaults resulted in 2 pregnancies when O.M. was age 16 and the first prior to her attaining age 16. The earlier pregnancy was terminated by abortion and O.M. gave birth to the second. The NJ Appellate Division held that, although substantial time had elapsed there was substantial evidence upon which a determination of guilt could be made. Where the Appellate Division found issue with the trial court’s finding was in regard to failure to charge the jury on sexual assault as a lesser-included offense of aggravated sexual assault. In State v. Ramsey, 415, N.J. Super 257, 266 (App.Div. 2010) the court held “improper instructions on material issues are presumed to constitute reversible error” in criminal trials. Pursuant to N.J.S.A. 2C:14-2(a)(6) an act of sexual penetration on another using physical force or coercion in which the victim sustains “severe personal injury” constitutes first-degree aggravated sexual assault. Under N.J.S.A. 2C:14-2(c)(1) an act of sexual penetration on another using physical force or coercion without “severe personal injury” to the victim constitutes second-degree sexual assault. Other than the “severe personal injury” the elements of these two offenses are the same and the trial court’s failure to charge the jury on the lesser-included offense is plain error which could have produced an unjust result. No court in New Jersey has held an unwanted pregnancy to constitute severe personal injury and the question of severe personal injury would then be left to a jury on a case by case basis. Commission of a sexual offense can be discovered many years after the incident or incident and can result in substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sex crimes, internet crimes, child pornography, rape, endangering the welfare of a minor or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.