Facing accusations of sexual assault or aggravated sexual assault in New Jersey is a terrifying experience. These charges carry severe penalties and life-altering consequences. Brett M. Rosen, Esq. is a dedicated and experienced criminal defense attorney and defends individuals against sex crime allegations in New Jersey. He provides aggressive and compassionate representation, protecting your rights and fighting for hopefully the best possible outcome. Contact him today at 908-312-0368 & brett@nynjcriminalcivilesq.com

Location: 100 Jefferson Avenue, Suite 301, Elizabeth, New Jersey 07201

Understanding the Difference: Sexual Assault vs. Aggravated Sexual Assault in New Jersey

New Jersey law distinguishes between two primary categories of sexual assault: Sexual Assault (N.J.S.A. 2C:14-2) and Aggravated Sexual Assault (N.J.S.A. 2C:14-2a). The key difference lies in the presence of aggravating factors during the commission of the sexual assault. Understanding these distinctions is crucial for building a strong defense.

Sexual Assault (N.J.S.A. 2C:14-2c):

This is a second-degree crime in New Jersey. It involves sexual penetration without consent, where “consent” is defined as affirmative and freely-given permission. This means the victim must actively agree, and silence, passivity, or prior relationships do not constitute consent. The act must occur in one of the following manners:

• The actor uses physical force or coercion. Note, it does not need to be extreme force, putting your hand on a victims leg and they say “No” is enough.
• The victim is on probation or parole or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status.
• An actor is guilty of sexual assault if the actor commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.
• The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status;
• The victim is at least 16 but less than 18 years old and:
  • The actor is related to the victim by blood or affinity to the third degree; or
  • The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or
  • The actor is a resource family parent, a guardian, or stands in loco parentis within the household;
• The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim;
• The victim is a pupil at least 18 but less than 22 years old and has not received a high school diploma and the actor is a teaching staff member or substitute teacher, school bus driver, other school employee, contracted service provider, or volunteer and the actor has supervisory or disciplinary power of any nature or in any capacity over the victim.

Aggravated Sexual Assault (N.J.S.A. 2C:14-2a):

This is a first-degree crime, the most serious category of crime in New Jersey. It occurs when an act of sexual penetration is committed and one or more of the following aggravating factors are present:

• Use of a Weapon: The perpetrator uses, threatens to use, or is in possession of a weapon.
• Infliction of Severe Personal Injury: The victim suffers severe physical injury, such as broken bones, disfigurement, or life-threatening injuries. “Severe personal injury” includes severe bodily injury, disfigurement, disease, loss or impairment of a sexual or reproductive organ, or mental anguish.
• Multiple Perpetrators: The assault is committed by two or more people.
• Victim Under 13 Years Old: The victim is less than 13 years old.
• Victim is Related to the Perpetrator: The perpetrator is related to the victim by blood or affinity to the third degree.
• Perpetrator in Position of Authority: The perpetrator has supervisory or disciplinary power over the victim (e.g., teacher, coach, counselor, employer).
• Commission of Another Crime: The sexual assault occurs during the commission of another serious crime, such as robbery, kidnapping, burglary, or arson.
• Physical Force and Helpless Victim: The actor uses physical force and the victim is physical helpless or incapacitated.

Penalties for Sexual Assault and Aggravated Sexual Assault in NJ

The penalties for these offenses are severe and depend on the degree of the crime:

Key Penalty Considerations:

• No Early Release Act (NERA): Both charges are subject to NERA, requiring that 85% of the prison sentence be served before becoming eligible for parole.
• Parole Supervision for Life (PSL): Upon release from prison, convicted individuals are subject to lifelong parole supervision.
• Megan’s Law Registration: Conviction requires registration as a sex offender under Megan’s Law, making personal information publicly available.
• DNA Database: A DNA sample will be collected and entered into a national database.
• Presumption of Incarceration: For both charges, there is almost a guaranteed chance of going to jail.

Forensic Interviews in Sexual Assault Cases

In many sexual assault cases, particularly those involving child victims or vulnerable adults, a forensic interview may be conducted. This is a specialized interview designed to:

• Gather Information: Obtain a detailed account of the alleged incident from the alleged victim.
• Minimize Trauma: Reduce the risk of re-traumatizing the alleged victim through repeated questioning.
• Maintain Objectivity: Conduct the interview in a neutral, non-leading manner.
• Assess Credibility: Help investigators assess the consistency and reliability of the alleged victim’s statements.

Forensic interviews are typically conducted by trained professionals, such as social workers, psychologists, or law enforcement officers with specialized training. The interview is often audio and video recorded.

Defense Considerations Regarding Forensic Interviews

An experiences attorney will carefully examine the forensic interview process, looking for:

• Leading Questions: Were suggestive or leading questions used that could have influenced the alleged victim’s responses?
• Interviewer Bias: Was the interviewer truly neutral, or did they exhibit any bias that could have tainted the interview?
• Inconsistencies: Are there inconsistencies between the alleged victim’s statements in the interview and other evidence?
• Developmental Appropriateness: Was the interview conducted in a manner appropriate for the alleged victim’s age and developmental level?
• Protocol Violations: Were proper interviewing protocols followed?

Challenging the forensic interview can be a crucial part of the defense strategy.

Potential Defenses Against Sexual Assault and Aggravated Sexual Assault Charges

These are extremely serious charges, but viable defenses often exist. An attorney will thoroughly investigate your case and explore all possible defenses, including:

• Lack of Consent Not Proven: The prosecution must prove beyond a reasonable doubt that the sexual activity was non-consensual. If there is evidence suggesting affirmative consent, or if the state cannot prove lack of consent, the charges may be dismissed or reduced.
• Mistaken Identity: If the identification of the perpetrator is unreliable or based on faulty evidence, it can be challenged.
• False Accusation: Sadly, false accusations of sexual assault do occur, often motivated by revenge, anger, or other ulterior motives. Mr. Rosen can investigate the accuser’s background and motivations to uncover potential fabrication.
• Lack of Physical Evidence: While not always required for a conviction, the absence of corroborating physical evidence (e.g., DNA, injuries) can weaken the prosecution’s case.
• Alibi: If you can prove you were somewhere else at the time of the alleged assault, this provides a strong defense.
• Mental Incapacity (of the Defendant): In rare cases, a defendant’s mental state at the time of the alleged offense might be a factor. This is a complex defense requiring expert testimony.
• Challenging the Aggravating Factors: For aggravated sexual assault charges, Mr. Rosen will scrutinize the evidence supporting the aggravating factors. If these factors cannot be proven beyond a reasonable doubt, the charge could be reduced to sexual assault.
• Improper police procedure: Police must follow proper guidelines for collecting evidence.

Frequently Asked Questions (FAQ)

Q: What should I do if I’m accused of sexual assault or aggravated sexual assault?

A: 1. Remain Silent: Do not speak to law enforcement without an attorney present. Anything you say can be used against you. 2. Contact an Attorney Immediately: Contact Brett M. Rosen, Esq. as soon as possible. 3. Preserve Evidence: Do not destroy any potential evidence, including text messages, emails, or social media posts. 4. Do not contact the accuser

Q: What is “affirmative consent”?

A: Affirmative consent means actively agreeing to engage in sexual activity. It cannot be inferred from silence, passivity, or a prior relationship.

Q: Can I be convicted based solely on the accuser’s testimony?

A: Yes, it is possible, but the prosecution must prove guilt beyond a reasonable doubt. An experienced attorney can challenge the credibility and reliability of the accuser’s testimony.

Q: What is Megan’s Law?

A: Megan’s Law requires convicted sex offenders to register with law enforcement, and their information is often made publicly available.

Q: What is the No Early Release Act (NERA)?

A: NERA requires individuals convicted of certain violent crimes, including sexual assault and aggravated sexual assault, to serve 85% of their prison sentence before becoming eligible for parole.

Q: What if the alleged victim recants their statement?

A: While a recantation can significantly impact the case, it doesn’t automatically lead to dismissal. The prosecution may still proceed, and the reasons for the recantation will be thoroughly investigated.

Contact Brett M. Rosen, Esq. Today

If you are facing sexual assault or aggravated sexual assault charges in New Jersey, your future is at stake. Contact Brett M. Rosen, Esq. for a free and confidential consultation. He will provide a vigorous defense and protect your rights every step of the way. 908-312-0368

Disclaimer: This information is for educational purposes only and does not constitute legal advice. The information provided on this page is intended to be a general overview of New Jersey law regarding sexual assault and aggravated sexual assault. It is not a substitute for the advice of a qualified attorney. Every case is unique, and the specific facts and circumstances of your situation will determine the best course of action. If you are facing charges or have questions about sexual assault allegations, you must consult with an experienced attorney immediately to discuss your specific situation and receive personalized legal guidance. Do not rely solely on this information to make legal decisions.