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Criminal Law Keyed to Gershowitz
State of New Jersey In the Interest of M.T.S.
Citation:129 N.J. 422, 609 A.2d 1266.
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M.T.S., a seventeen-year-old boy, was temporary residing in a home where C.G., a fifteen-year-old girl, also lived. M.T.S. testified that on May 22, 1990, at 1:15am, the two engaged in consensual kissing and heavy petting. M.T.S. said that once they were in bed, they undressed each other and continued to kiss and touch for about five minutes. According to M.T.S., he penetrated her and on the fourth time he stuck his penis in, she pushed him off and said “stop, get off.” He said that he “hopped off right away.” He said that he asked C.G. what was wrong and she slapped him.
According to C.G., she woke up with M.T.S. on top of her, her underwear removed, and his penis inside of her vagina. As soon as C.G. realized what was happening, she slapped the defendant and told him to get off. She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being slapped. C.G. cried herself back to sleep.
At trial, the court determined that M.T.S. was delinquent for committing a sexual assault. The Appellate Division reversed, holding that non-consensual penetration does not constitute sexual assault because there is an absence of force. The State appealed.
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