Second Degree Sexual Assault of a Child NJ
In State v. Thomas, 322 N.J. Super. 512, 731 A.2d 532 (App.Div.1999), defendant pled guilty to second-degree sexual assault for touching a child, age eleven, in her "vaginal area" but he did not admit to any penetration.
No weapon was involved. the State on its appeal argued that NERA applies in any case where a defendant commits a sexual assault designated as a crime of the first or second-degree where the victim does not affirmatively and freely give permission for the act of sexual contact. Id. at 516, 731 A.2d 532.
The Court agreed with the trial judge that the "No Early Release Act clearly requires an independent act of force or threat of force against the victim that is additional to the constituent elements of the crime." Ibid. Moreover, we stated that "general principles of statutory construction mandate strict construction of a criminal statute." Id. at 518, 731 A.2d 532.
The Court also stated that "aggravated sexual assault or sexual assault does not meet that definition unless the actor uses or threatens the immediate use of physical force." Id. at 520, 731 A.2d 532.
The Court found the NERA inapplicable.