## Facts

- C.G., age fifteen, lived in a crowded townhouse with her family and others, including M.T.S., age seventeen, who was staying there with permission.
- In C.G.’s bedroom, C.G. and M.T.S. engaged in consensual kissing and sexual touching.
- The trial court found that M.T.S. then committed sexual penetration without C.G.’s consent to penetration.
- There was no evidence of threats or force beyond that inherent in accomplishing penetration.
- C.G. reported the incident the next morning; the State charged M.T.S. in juvenile court with conduct that would constitute second-degree sexual assault if committed by an adult.

## Issues

1. Whether “physical force” under N.J. Stat. § 2C:14-2(c)(1) is satisfied by nonconsensual sexual penetration using no additional force beyond that needed to accomplish penetration.
2. Whether the statute requires proof of victim resistance or express verbal nonconsent to establish lack of consent to penetration.
3. What standard governs proof of “permission” or consent to the specific act of penetration.

## Decision

- The Supreme Court of New Jersey reversed the Appellate Division and reinstated the delinquency adjudication.
- The court held that the “physical force” element is satisfied by the act of sexual penetration itself when penetration occurs without the victim’s affirmative and freely given permission.
- The court rejected a requirement of force “more than that necessary to accomplish penetration.”
- The court held that the victim need not prove resistance or express verbal nonconsent; permission may be inferred from words or actions evaluated in context.

## Legal Principles

- Under N.J. Stat. § 2C:14-2(c)(1), “physical force” is established as a matter of law by nonconsensual sexual penetration; no extrinsic force or threats are required.
- Sexual penetration is unlawful absent the victim’s affirmative and freely given permission to the specific act of penetration.
- Permission may be shown by words or actions that, under all surrounding circumstances, would communicate consent to a reasonable person in the actor’s position.
- Lack of resistance or failure to verbally object does not, by itself, constitute permission and does not defeat a sexual-assault charge.

## Conclusion

The court construed New Jersey’s sexual-assault statute to treat nonconsensual penetration as satisfying the “physical force” element and adopted an affirmative-permission standard for penetration, eliminating any requirement of additional force or victim resistance.


State in the Interest of M.T.S., 129 N.J. 422, 609 A.2d 1266 (1992)