State v. Thomas

PORITZ, C.J.,

dissenting.

The Court today holds that the No Early Release Act (“NERA”) applies only to sexual assaults and aggravated sexual *577assaults in which physical force beyond that inherent in the act of penetration or contact is used or threatened. Because I believe that holding conflicts with and is precluded by the Court’s decision in State in the Interest of M.T.S., 129 N.J. 422, 609 A.2d 1266 (1992), I respectfully dissent.

N.J.S.A. 2C:14-2c(1) makes sexual penetration a crime of the second degree where “the actor uses physical force and coercion, but the victim does not sustain severe personal injury.” In M.T.S. the Court examined that language in the context of “almost two hundred years of rape law in New Jersey.” M.T.S., supra, 129 N.J. at 431, 609 A.2d 1266. Whether there had been “physical force and coercion” constituting rape had traditionally been viewed in relation to the victim’s resistance thereby shifting attention from the defendant’s assaultive conduct to the victim’s response. Id. at 432, 609 A.2d 1266. The Court found that when the Legislature adopted the current Code of Criminal Justice in 1978, it reformulated the statutory provisions concerning rape:

In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modem principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. In interpreting “physical force” to include any touching that occurs without permission we seek to respect that goal.
[Id. at 445—46, 609 A.2d 1266 (citations omitted).]

Most important, the Court held

that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of “physical force” is satisfied under N.J.S.A 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.
[Id. at 444, 609 A.2d 1266.]

I have discussed M.T.S. in some detail because I believe that we are now backing away from the principles so eloquently described *578by Justice Handler in that opinion. We determined there that the statutory language “physical force and coercion” does not require physical force beyond that involved in unwanted sexual penetration or sexual contact. Today we are reverting back to the more traditional view rejected by the 1978 revisions to the Criminal Code and by this Court in M.T.S. Implicit in the traditional view is the notion that when an actor commits sexual assault without using or threatening any extra physical force the assault does not involve violence. I believe, and M.T.S. held, that a sexual assault is a violation of the victim’s bodily integrity and is inherently violent. That view lies at the very heart of the reform of our sexual assault laws. See M.T.S., supra, 129 N.J. at 445-46, 609 A.2d 1266.

It is against this backdrop that the Court interprets the same language in NERA. In defining violent crimes for sentence enhancement purposes under NERA the Legislature stated:

For the purposes of this section, “violent crime” means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. “Violent crime” also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.
[N.J.S.A. 2C:43-7.2d (emphasis added).]

As in the sexual assault statute, NERA does not define “physical force,” and as in M.T.S., the Court finds that the disputed language is “ambiguous.” Ante 166 N.J. at 567, 767 A.2d at 463. The Court further finds that the Legislature is presumed to have known about our construction of the disputed language in M.T.S. but, inexplicably, decides that “physical force” should now be interpreted differently in NERA. Ante 166 N.J. at 568, 767 A.2d at 463. I see no basis for a departure from that basic rule of statutory construction. The purpose of NERA is to “to penalize more severely the criminal who is prone to use violence.” Ante 166 N.J. at 572, 767 A.2d at 465. That purpose is not subverted by the M.T.S. conclusion that sexual assault is inherently violent.

Moreover, utilizing the M.T.S. definition of sexual assault does not render the “physical force” language of NERA mere surplus-*579age. We expressly rejected that contention in M.T.S. when we found that “as a description of the method of achieving ‘sexual penetration,’ the term ‘physical force’ serves to define and explain the acts that are offensive, unauthorized, and unlawful.” 129 N.J. at 445, 609 A.2d 1266. Similarly, the term “physical force” in N.J.S.A. 2C:43-7.2d does not add additional force beyond that of the actual sexual assault but, rather, serves to describe the crimes defined in M.T.S. and included under NERA.

Finally, like the majority, I too would invite the Legislature to clarify its intentions in respect of NERA. I recognize that the Legislature may ultimately choose to exclude certain categories of sexual assault from the NERA parole ineligibility requirements. Until then, however, I am unwilling to attribute to the Legislature an intent to require additional force beyond that of unwanted sexual penetration or contact before those crimes can be classified as violent for the purposes of NERA sentencing.

ZAZZALI, J., joins in this opinion.

For affirmance— Justices STEIN, COLEMAN and LaVECCHIA — 3.

Dissenting — Chief Justice PORITZ, and Justice ZAZZALI — 2.