WHAT WOULD YOU DO?
James Wronko’s client J. was indicted by a Union County Grand Jury and charged with Aggravated Sexual Assault, First Degree. A crime that carries a potential sentence of 20 years in New Jersey State Prison. The client would also be subject to Megan’s Law reporting and parole supervision for life (PSL) as a convicted sex offender.
J. was also charged with second degree sexual assault which carries a potential sentence of 10 years in State Prison with Megan’s Law and PSL.
The case was tried in Union County Superior Court. At the conclusion of the evidentiary portion of the trial, the aggravated sexual assault charge was dismissed by the Court. That charge required the State to prove beyond a reasonable doubt that the alleged victim was sexually penetrated while J. knew she was physically helpless.
The case essentially involved the following. J. and the alleged female victim were employed at a restaurant that was open for takeout only during the Covid 19 epidemic.
After the restaurant closed for the night, J. and the alleged victim and an on duty uniformed police officer were drinking at the bar. The video which depicted the inside main floor of the bar showed that they each consumed 5 shots of whiskey and a mixed drink. In addition, J. and the woman, did “bumps” of cocaine downstairs in the office. They ultimately went downstairs for an extended period of time, and this is when the major factual discrepancy occurred, and she claims she was sexually assaulted.
The woman testified that J. forced his penis into her mouth against her will. J. testified that they engaged in consensual sexual activities.
The woman was subjected to cross examination and her story was not believable and contained many inconsistencies and statements that made no sense. J. testified and was very credible and explained the lengthy relationship between him and the woman and how she agreed to engage in sexual activities.
In order to be found guilty of first degree aggravated sexual assault, the State has to prove that J. knew or should have known that the woman was physically helpless, or unable to flee or communicate an unwillingness to act. For instance, a woman who was asleep could be found physically helpless. State v. Rush, 278 N.J. Super. 44 (App. Div. 1994).
The Court determined that the woman was not physically helpless although she had consumed a lot of alcohol in a short period of time. The woman admitted she was not intoxicated, just felt extra comfortable.
In addition, J. testified she was not intoxicated and routinely drank large amounts of alcohol. In addition, the uniformed police officer, and her boyfriend who picked her up that night, indicated she did not appear drunk, intoxicated or under the influence.
Finally, the woman herself testified that she communicated her unwillingness to engage in sexual activities and that she was able to resist J’s advances and was ultimately able to stop him.
After the Court dismissed the aggravated sexual assault charge and entered a Judgement of acquittal, the only remaining charge for the jury to consider was the sexual assault.
The State, in order to have J. found guilty of forced fellatio, had to prove that the woman did not consent. The jury was specifically instructed as follows:
“The commission of the act of sexual penetration without the victim’s freely and affirmatively given permission to the specific act of penetration alleged to have occurred is a crime. You must decide whether the defendant’s alleged act of penetration was undertaken in circumstances that left the defendant reasonably to believe that the victim had freely given affirmatively to the specific act of sexual penetration simply put, affirmatively given permission means the victim did or said something which would lead a reasonable person to believe she was agreeing to engage in the act of sexual penetration, and freely given permission means the victim agreed of her own free will to engage in the act of sexual penetration. Freely and affirmatively given permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person that affirmative and freely given permission for the specific act of sexual penetration had been given.
Persons need not, of course, expressly announce their consent to engage in an act of sexual penetration for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.
In determining the reasonableness of the defendant’s belief that the victim had freely given affirmative permission, you must keep in mind that the law places no burden on the alleged victim to have expressed non-consent or to have denied permission. You should not speculate as to what the alleged victim thought or desired or why she did not resist or protest. The State is not required to prove that the victim resisted.”
During deliberations, the jury asked if an intoxicated person could legally give consent? The court advised it was up to the jury to make that determination. Practically speaking, a person who is so intoxicated that they are almost comatose cannot consent. However, a person under the influence can consent depending on how drunk or high they are. A person who consents because their judgment was impaired is not the victim of a sexual assault even if they later change their mind or engage in “buyer's remorse”.
The jury subsequently advised the Court that they could not reach a unanimous verdict. Their deliberations and the vote are private and remains so. They were told to keep talking and try to reach a verdict.
Thereafter, the State changed its plea offer to probation with no State Prison or jail, no Megan’s law reporting or parole supervision for life. Ultimately J. decided to be wouldn’t risk 10 years in prison and being labeled a sex offender and having to be on parole for at least 15 years if not for life. He accepted the plea offer.
Before the resolution could be placed on the record before the Court, the Jury indicated they had reached a verdict. J. now had a difficult choice to make-whether to accept the verdict or enter into the plea bargain.
Attorney Wronko explained that his opinion was that the verdict was not guilty, but he could not give a guarantee. J. decided to take the very favorable plea deal to a much lesser offense and penalties as outlined above.
The Jury’s verdict still remains a secret. What would you have done if you had this difficult decision to make?