## Facts

- A superseding indictment charged multiple defendants, including Kevin Scherzer, Kyle Scherzer, and Christopher Archer, with conspiracy and sexual offenses arising from sexual acts involving M.G., a 17-year-old girl.
- M.G. testified she performed sexual acts (including oral sex) after defendants urged her, but she also testified she was not physically forced or threatened and believed she consented.
- The State presented lay and expert testimony describing M.G. as mildly mentally retarded, highly suggestible, and eager to please others to gain acceptance.
- Experts opined M.G. was “mentally defective” under the criminal code because she was incapable of understanding the nature of the sexual conduct or of refusing to engage in it.

## Issues

1. Whether evidence of “urging” or persuasion, without physical compulsion, threats, or comparable pressure, is sufficient to prove aggravated sexual assault “by force or coercion.”
2. Whether the evidence supported a finding that M.G. was “mentally defective” under the statutory definition, rendering her apparent consent legally ineffective.
3. Whether the record supported the conspiracy conviction tied to aggravated sexual assault involving a mentally defective victim.

## Decision

- The Appellate Division reversed the convictions for first-degree aggravated sexual assault to the extent they were predicated on “force or coercion.”
- The court affirmed the convictions (and related liability) based on sexual penetration (or attempted penetration) of a “mentally defective” person where defendants knew of the victim’s condition.
- The court affirmed the conspiracy conviction, concluding the evidence supported an agreement to commit aggravated sexual assault against a mentally defective victim.
- Remaining challenges to trial rulings and instructions did not warrant reversal of the affirmed counts.

## Legal Principles

- “Force or coercion” for aggravated sexual assault requires more than verbal urging, persuasion, or social pressure; absent threats, violence, or comparable coercive conduct, the element is not satisfied.
- A “mentally defective” person—incapable of understanding the nature of the sexual conduct or of refusing to engage in it—cannot give legally effective consent, even if the person subjectively believes they consented.
- Sexual penetration of a mentally defective victim constitutes aggravated sexual assault when the defendant knows of the victim’s mental condition.
- Conspiracy may be sustained where coordinated conduct supports an agreement to commit aggravated sexual assault under a valid statutory theory (here, the mentally defective-victim theory).

## Conclusion

The court drew a sharp distinction between aggravated sexual assault “by force or coercion,” which cannot rest on mere persuasion, and aggravated sexual assault involving a mentally defective victim, where apparent consent is legally ineffective and criminal liability may be sustained if defendants knew of the victim’s incapacity.


State v. Scherzer, 301 N.J. Super. 363, 694 A.2d 196 (App. Div. 1997)