(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 17, 1998 -- Decided June 4, 1998
COLEMAN, J., writing for a majority of the Court.
The issue in this case is whether a defendant who has criminal sexual contact with himself that is
observed by two children of eight and ten years from a distance of approximately seventy-five feet has
committed second-degree sexual assault.
On June 18, 1994, Carol S., an adult, took her friend's two young children, K.B. and E.B., and their
two young cousins to a beach area located on the border of Asbury Park and Ocean Grove. At
approximately 8:00 p.m., Officer Frederick Jenkins observed an adult female (Carol) with two young children
(K.B. and E.B.) playing in the middle of the beach, two other children playing in the water (the cousins), and
Zeidell, who was standing at the end of the boardwalk nearest the ocean, approximately seventy-five feet
from where Carol and the children were playing. There were no obstacles blocking Zeidell's view of the
beach.
Approximately two minutes after the officer left the beach, Carol directed K.B. and E. B.'s attention
to Zeidell, who was in the act of masturbating. At that point, Zeidell was facing the ocean while touching his
intimate parts. He did not appear to notice anyone or to make eye contact with the children even though he
was facing them. Carol sent E.B. to alert a police officer. E.B. ran to officer Jenkins and was joined shortly
by Carol and K.B., who related what they had seen.
Zeidell was charged with and convicted of two counts of second-degree sexual assault upon K.B. and
E.B., who were eight and ten years old respectively; two counts of endangering the welfare of those two
children; and two counts of fourth-degree lewdness based on exposing his intimate parts to the same
children. He was sentenced to concurrent ten-year terms with five years of parole ineligibility to the Adult
Diagnostic and Treatment Center.
In a reported opinion, a divided panel of the Appellate Division reversed the two convictions for
sexual assault. The majority concluded that to commit sexual assault, the actor must cause, invite, or
specifically solicit the under age person to view the conduct, whereas incidental or casual observation is
sufficient to constitute lewdness. Therefore, because there was no specific victim and aggressive assaultive
contact, the majority held that the necessary elements of the offense had not been proven. The dissenting
judge believed that no specific victimization was required and that all that was required was that the sexual
act be in the view of the victim whom the actor knows to be present.
The State appeals as of right because of the dissent below.
HELD: Specific intent to victimize an observer is not an element of sexual assault involving a child who is
less than thirteen years old.
1. The New Jersey Code of Criminal Justice (“Code”) provides that when the language of its provisions is
susceptible of differing constructions, it shall be interpreted to further the general and special purposes of the
particular provision involved. (pp. 8-9)
2. Based on the structure and legislative history of the Code, the State was not required to prove specific
victimization and aggressive assaultive conduct to establish a “tender-years” sexual assault. (pp. 9-15)
3. Under the Code, lewdness does not require a showing of a touching by the actor or victim and can be either
a disorderly person offense or a fourth-degree crime depending on the age and/or mental capacity of the victim.
(pp. 15-18)
4. Unlike lewdness, sexual assault does not require the underage child to actually observe the touching. Rather,
it requires only that the actor engage in a sexual touching “in view of” an underage child whom the actor knows
to be present. Whether a prohibited act is “in the view of” an underage child is a factual question. (pp. 19-21)
5. The Legislature did not create a unified crime of tender-years-sexual assault and fourth-degree lewdness. (p.
21)
6. When the pertinent sections of the Code are read together, the meaning and scope of the tender-years-sexual
assault are clear and unambiguous. (pp. 23-24)
7. Although the Code does not specifically define the word “present,” it must nevertheless be accorded its
ordinary meaning absent an indication of some special meaning. The ordinary meaning of “presence” here is
that the actor knows that young children can see the actor touching his or her intimate parts, and the jury could
reasonably have found that Zeidell knew the children could and would see him touching his genitals. (pp. 25-26)
8. The Code does not require the actor to solicit or invite the young victims to observe the proscribed conduct
in order for the conduct to be considered a tender-years-sexual assault. (p. 26)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division to decide whether the sentence imposed was excessive.
JUSTICE STEIN filed a separate dissenting opinion in which he disagreed with the majority's
determination that the Code did not require an act of specific victimization to sustain a conviction for sexual
assault. Because the record revealed no public act performed by Zeidell with sufficient intent or awareness that
it be witnessed by children under the age of thirteen, Justice Stein believed the sexual assault charges were
properly dismissed by the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, and GARIBALDI join in
JUSTICE COLEMAN's opinion. JUSTICE STEIN has filed a separate dissenting opinion. JUSTICE
O'HERN did not participate.
SUPREME COURT OF NEW JERSEY
A-
97 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
THOMAS G. ZEIDELL,
Defendant-Respondent.
Argued February 17, 1998 -- Decided June 4, 1998
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 299
N.J. Super. 613 (1997).
Mark P. Stalford, Assistant Prosecutor,
argued the cause for appellant (John A. Kaye,
Monmouth County Prosecutor, attorney).
Steven M. Gilson, Designated Counsel, argued
the cause for respondent (Ivelisse Torres,
Public Defender, attorney).
John F. O'Hern, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney).
Thomas G. Zeidell submitted letters in lieu
of brief, pro se.
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this appeal is whether a defendant who
has criminal sexual contact with himself that is observed by two
children of eight and ten years from a distance of approximately
seventy-five feet has committed second-degree sexual assault. In
a reported opinion, a divided panel of the Appellate Division
reversed two convictions for sexual assault. The majority
concluded that because no specific victimization and aggressive
assaultive conduct had been established, the necessary relational
component for sexual assault had not been proven. State v.
Zeidell,
299 N.J. Super. 613, 619-20 (1997). The dissenting
judge believed that no specific victimization was required and
that all of the statutory elements of sexual assault had been
established. Id. at 624-27.
The State appeals as of right because of the dissent below.
R. 2:2-1(a)(2). We reverse and hold that the specific intent to
victimize an observer is not an element of sexual assault
involving a child who is less than thirteen years old (referred
to as a tender-years-sexual assault).
Defendant was convicted of the following offenses: two counts of second-degree sexual assault upon K.B. and E.B., who were ten and eight years old, respectively; two counts of endangering the welfare of those two children; and two counts of fourth-degree lewdness based on exposing his intimate parts to the same children. After merging the endangerment and lewdness counts with the sexual assaults upon each child, the court
sentenced defendant to concurrent ten year terms with five years
of parole ineligibility to the Adult Diagnostic and Treatment
Center.
The evidence presented by the State that tended to establish
the elements of the charged offenses consisted of what follows.
On June 18, 1994, Carol S., an adult, took her friend's two young
children, K.B. and E.B., and their two cousins, J.F. and C.F., to
a beach area located on the border of Asbury Park and Ocean
Grove. The beach area was approximately fifty yards wide and was
situated between buildings located to the north and south. To
the west, there was a boardwalk that extended in a northerly
direction.
Although the beach was crowded earlier in the day, at the
time of the alleged criminal conduct only Carol and the children
were present. After the four children had been playing in the
water for awhile, K.B. and E.B. exited the water to talk and play
with Carol, who was sitting on a towel near the center of the
beach. J.F. and C.F. remained in the water. Carol faced the
water and K.B. sat facing her as they spoke. E.B. sat to Carol's
right side and stared out at the water.
Shortly after 8:00 p.m. while patrolling the beach areas,
Officer Frederick Jenkins observed an adult female with two young
children playing in the middle of the beach; two other children
were swimming in the water. Officer Jenkins also observed
defendant and a couple at the beach area. Defendant was standing
at the end of the boardwalk nearest the ocean, approximately
seventy-five feet from where Carol and the children were playing.
According to Officer Jenkins, there were no obstacles blocking
defendant's view of the beach. Eventually, both the officer and
the couple left the beach, leaving defendant on the boardwalk
standing beside a bicycle.
Approximately two minutes later while Carol, K.B. and E.B.
were still on the beach, Carol exclaimed "look at that man
jerking off over there." K.B. and E.B. looked toward the
boardwalk and saw defendant masturbating. Carol dispatched E.B.
to alert a police officer. E.B. ran to Officer Jenkins who
described her as being frantic, excited, and "kind of scared."
When E.B. was unable to tell Officer Jenkins what had happened,
or to "put into words what she wanted to say" to inform the
officer of what she had observed, Carol arrived with K.B., who
was also excited. Carol explained why a police officer was
needed.
Defendant was facing the ocean while touching his intimate
parts. At no time did he appear to notice anyone in particular
or appear to make eye contact with the children even though he
was facing them. Officer Jenkins testified that from where
defendant was standing on the boardwalk, nothing obstructed his
line of vision of Carol and the two children.
The majority below ruled that the trial court should have granted defendant's motions to acquit on the two sexual assault counts because the State's evidence lacked “the necessary relational component” to sustain defendant's convictions under N.J.S.A. 2C:14-2b, i.e., “specific victimization and aggressive assaultive conduct.” Zeidell, supra, 299 N.J. Super. at 619-20. The court reasoned that unlike the factual situation in State v. Ridgeway, 256 N.J. Super. 202 (App. Div.), certif. denied, 130 N.J. 18 (1992), where the defendant called an eleven-year-old girl over to his car to watch him masturbate, here, defendant was not in close proximity to the children and never looked in their direction. Zeidell, supra, 299 N.J. Super. at 619. Furthermore, although the panel concluded that the language “with a victim” in the statutory definition of sexual assault does not require physical contact between the actor and the victim, the panel held that it does require that there be a victim. Id. at 620. The court rejected the State's argument that the primary distinction between the sexual assault statute, N.J.S.A. 2C:14-2b, and the lewdness statute, N.J.S.A. 2C:14-4b(1), is that sexual assault requires more than the mere “exposure” of intimate parts. Id. at 621. Rather, citing John M. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:14-4b (1996-1997), the majority found the primary distinction between the statutes to be the requisite relationship between the actor to the victim.
Zeidell, supra, 299 N.J. Super. at 621-22. The majority
concluded that to commit sexual assault, the actor must cause,
invite, or specifically solicit the underage person to view the
conduct, whereas incidental or casual observation is sufficient
to constitute lewdness. Ibid.
The dissenting member of the panel disagreed with the
majority's conclusion that N.J.S.A. 2C:14-2b required the State
to prove “specific victimization and aggressive assaultive
conduct” directed toward a victim. Id. at 625. “All that is
necessary is that the sexual act be 'in the view of the victim
whom the actor knows to be present.'” Ibid. (citation omitted).
The dissenting judge found that the State presented sufficient
evidence to permit the jury to reasonably infer that defendant
knew the children, who were only seventy-five feet away, were
present on the beach and in a position to observe him. Id. at
625-26. The dissent found it unnecessary for the State “to
obtain an admission by the defendant that he was aware of the
victims' presence or their observation of him. Defendant's
awareness may be inferred by the circumstances.” Ibid. Finally,
the dissenting judge was of the view that the fact that the
children inadvertently observed defendant, or that he did not
target them, is of no legal significance. Id. at 626.
Defendant's guilt should not hinge on whether a child
fortuitously fails to observe the actor. Ibid. It is sufficient
that defendant knew the children were present. Ibid.
The State argues that the majority opinion in the Appellate
Division improperly engrafted an additional element onto the
tender-years-sexual assault offense by requiring the State to
prove that defendant specifically solicited K.B. and E.B. to
watch him masturbate on the boardwalk. The State maintains that
when the pertinent subsections of the Code are read in
conjunction with each other, it becomes apparent that the
Legislature has clearly and unambiguously defined the tender-years-sexual assault offense.
This appeal requires us to determine how the Legislature intended to distinguish when certain proscribed conduct constitutes second-degree-tender-years-sexual assault rather than fourth-degree lewdness. The answer must be based on the language and structure of the New Jersey Code of Criminal Justice (Code). The Code defines the substantive offenses and the required mental state, and the terms used in the statutory description of the offenses. It also contains principles of construction. We first
outline the relevant Code provisions that provide the framework
for determining whether the sexual assault convictions in this
case were proper.
The Code acknowledges that some of the general purposes to
be served by defining terms and concepts used to describe
substantive offenses and mental culpability are "[t]o give fair
warning of the nature of the conduct proscribed[,] . . . [t]o
differentiate on reasonable grounds between serious and minor
offenses[,] . . . [and] [t]o define accurately the act and mental
state which constitute each offense." N.J.S.A. 2C:1-2a(4), (6).
The Code also provides that when the language of its provisions
"is susceptible of differing constructions it shall be
interpreted to further the general purposes stated in this
section and the special purposes of the particular provision
involved." N.J.S.A. 2C:1-2c. Consistent with the Code's
requirements, and with the requirements of constitutional due
process, we must decide whether the statutory description of the
tender-years-sexual assault was unambiguous.
Under the Code, a tender-years-sexual assault is defined as
"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."
N.J.S.A. 2C:14-2b. A victim in this case is "a person alleging
to have been subjected to offenses proscribed by" Chapter 14 of
the Code. N.J.S.A. 2C:14-1b. An act of sexual contact
means an intentional touching by the victim
or actor, either directly or through
clothing, of the victim's or actor's intimate
parts for the purpose of degrading or
humiliating the victim or sexually arousing
or sexually gratifying the actor. Sexual
contact of the actor with himself must be in
view of the victim whom the actor knows to be
present.
The drafters of the Code as proposed in 1971 included under sexual assaults an offense called sexual contact. 1 Final Report of the New Jersey Criminal Law Revision Commission § 2C:14-4, at 62 (1971) (Final Report). Sexual contact with a child less than twelve years old was the most serious of such sexual assaults. Id. at 63. The definition of sexual contact was taken from the Model Penal Code Tentative No. 4 (1953). 2 Final Report, supra, commentary to § 2C:14-4, at 200. Sexual contact was defined as "any touching of the sexual or other intimate parts of a person for the purpose of arousing or gratifying sexual desire." 1 Final Report, supra, § 2C:14-4, at 63.
Between the adoption of the Commissioner's Report in 1971 and the adoption of the Code in 1978, the Legislature changed the 1971 proposed definition of sexual contact to include the act of touching one's own intimate parts. The Legislature modeled the sexual offenses chapter, Chapter 14, after a model statute drafted by the Philadelphia Center for Rape Concern. State In Interest of M.T.S., 129 N.J. 422, 440 (1992) (citing Leigh Bienen, Rape II, 3 Women's Rts. L. Rep. 90 (1977)). The Philadelphia Center for Rape Concern had, in turn, modeled its statute primarily on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b)
(Callaghan 1990), and on reform statutes in New Mexico,
Minnesota, and Wisconsin. M.T.S., supra, 129 N.J. at 440 (citing
Bienen, supra, 6 Women's Rts. L. Rep. at 207).
The Philadelphia Center for Rape Concern's model statute
defined “sexual contact” as “the intentional touching of the
victim's clothing covering the immediate area of the victim's
sexual or intimate parts. Sexual contact shall include the
victim's touching the sexual or intimate parts of the offender
when such touching is reasonably construed as being for the
sexual arousing or gratification of the actor.” Cannel, supra,
at comment 4 on N.J.S.A. 2C:14-1 (emphasis added). When enacted,
however, the New Jersey Legislature changed that definition to
touching “for the purpose of degrading or humiliating the victim
or sexually arousing or sexually gratifying the actor.” N.J.S.A.
2C:14-1d. Additionally, the Legislature added the sentence,
“Sexual contact of the actor with himself must be in view of the
victim whom the actor knows to be present[,]” to clarify that the
actor's touching of himself was included.
N.J.S.A. 2C:14-1d
;
Cannel, supra, comment 4 on N.J.S.A. 2C:14-1 (emphasis added).
Neither of the statutes on which the Philadelphia Center for Rape
Concern predicated its model statute, nor any other state
statutes define “sexual contact” similarly to include an actor's
touching of himself or herself. Nevertheless, we must strive to
give effect to the language of the statute as a whole. See Peper
v. Princeton Univ. Bd. of Trustees,
77 N.J. 55, 68 (1978) ("A
construction of a legislative enactment which would render any
part thereof superfluous is disfavored."); N.J.S.A. 2C:1-2c.
Consequently, the statute must be interpreted to reach the class
of defendants not covered by the original language proposed in
1971.
Prior case law provides some insight into the legislative
intent. Although very few judicial decisions discuss the
elements necessary to convict a defendant under N.J.S.A. 2C:14-2b, those decisions that do, tend simply to restate the statutory
terms. See, e.g., State v. J.S.,
222 N.J. Super. 247, 257-58
(App. Div.),
certif. denied,
111 N.J. 588 (1988)
(stating that N.J.S.A.
2C:14-2b requires act of sexual contact with victim under
thirteen years of age by defendant who is four years older than
victim); State v. Gray,
206 N.J. Super. 517, 522 (App. Div.
1985),
certif. denied,
103 N.J. 463 (1986)
(indicating that N.J.S.A. 2C:14-2b makes it crime of sexual assault if actor, who is at least
four years older than victim, commits act of sexual contact with
victim less than thirteen years of age). A Chancery Division
case held that N.J.S.A. 2C:14-2b, when read in context with
N.J.S.A. 2C:14-3b, N.J.S.A. 2C:14-2c(1), and N.J.S.A. 2C:14-1d,
requires the State to prove the following elements in order to
obtain a conviction under N.J.S.A. 2C:14-2b: “1) the defendant
is at least four years older than the victim, who was less than
13 at the time of the alleged sexual assault; and 2) that a
sexual contact occurred through the use of physical force or
coercion which caused no severe personal injury to the victim.”
State in Interest of A.N.,
267 N.J. Super. 158, 160 (Ch. Div.
1993) (emphasis added). Physical force or coercion, however, are
not mentioned in the statutory scheme defining the offense when
the victim is less than thirteen years old; nor does the offense
require proof of any injury to the victim.
In State v. Ramos,
203 N.J. Super. 206 (Law Div. 1985), the
Law Division explained that in enacting Chapter 14, the
Legislature intended to separate public sexual crimes from
private sexual crimes. In Ramos, a defendant who touched the
intimate parts of a seven-year-old child, requested that, in
addition to charging the jury on the crimes of aggravated sexual
assault and sexual assault, the court charge the jury on the
lesser included offense of lewdness. Id. at 207. In rejecting
the defendant's argument, the court held that the Legislature
intended the lewdness statute, N.J.S.A. 2C:14-4, to “encompass
only those sexual acts which are either observed by others or
intended or expected to be observed by others.” Ramos, supra,
203 N.J. Super. at 209 (emphasis added). Conversely, the court
found that the Legislature intended the sexual assault statute,
N.J.S.A. 2C:14-2, and the criminal sexual contact statute,
N.J.S.A. 2C:14-3, to prohibit “private sexual misconduct.”
Ramos, supra, 203 N.J. Super. at 209 (emphasis added). Because
the defendant's conduct occurred in private, the court found the
lewdness statute inapplicable. Id. at 210. Here, too, we
disapprove of the court's interpretation of the tender-years-sexual-assault statute.
There is only one reported New Jersey decision that
discusses the application of N.J.S.A. 2C:14-2b to an actor who
touches his intimate parts in front of a child but does not
physically touch the child or have the child touch him. In
Ridgeway, supra, a defendant pled guilty to the crime of second-degree sexual assault but later appealed, claiming that there was
an inadequate factual basis for the plea. 256 N.J. Super. at
203. There, the defendant pulled his car to the side of the road
and asked an eleven-year-old for the time when she came to his
car. Id. at 204. When the girl stood near the car window, she
could see that the defendant had his pants open and was “playing
with” his private parts. Id. at 205. The defendant asked the
girl, “Would you like this?” Ibid. Frightened, the girl ran
away. Ibid. The defendant claimed that N.J.S.A. 2C:14-2b
required a showing of actual physical contact between the actor
and the victim. Ibid. Rejecting that contention, the Appellate
Division held that N.J.S.A. 2C:14-2b clearly does not require
physical contact between the actor and the victim. Id. at 206.
The court also concluded that the statutory language defining
tender-years-sexual assault was clear. Ibid.
There are other reported decisions implicating N.J.S.A.
2C:14-2b based on an actor touching his intimate parts in the
presence of young children, or the actor either touching the
children, or persuading them to touch him. See, e.g., State v.
Slattery,
239 N.J. Super. 534, 540 (App. Div. 1990); State v.
Schumann,
218 N.J. Super. 501, 504-05 (App. Div. 1987), aff'd in
part, rev'd in part,
111 N.J. 470 (1988); State v. Hess,
198 N.J.
Super. 322, 326 (App. Div. 1984).
Based on the structure and legislative history of the Code,
we believe the Appellate Division was mistaken when it concluded
that the sexual assault charges should have been dismissed at the
end of the State's case "because the necessary relational
component for a conviction on these counts was missing."
Zeidell, supra, 299 N.J. Super. at 619. The court's reasoning
that the State was required to prove specific victimization and
aggressive assaultive conduct expands the legislative description
of the offense.
When the controlling statutory provisions of the Code are
read together, we find that a tender-years-sexual assault under
N.J.S.A. 2C:14-2b contains three key elements. They are: (1) a
victim who is less than thirteen years old, (2) a defendant-actor
who is at least four years older than the victim, and (3) a
sexual contact with a victim under the critical age. The sexual
contact with a victim involves an intentional or purposeful
touching of an intimate part. There are three types of
intentional sexual touchings: the actor may touch himself or
herself, the actor may touch the victim, or the victim may touch
the actor. Each such intentional touching must be for at least
one of four purposes: either degrading or humiliating the victim,
or sexually arousing or sexually gratifying the defendant-actor.
Finally, if the touching is by the actor of himself or herself,
the sexual touching must be in view of the victim whom the actor
knows to be present.
Because defendant argues that his conduct only amounted to
fourth-degree lewdness and not sexual assault, we must also focus
on that offense. Like the tender-years-sexual assault, the
lewdness statute that became part of the Code in 1978 was
different from the 1971 proposal.
The proposed Code contained two forms of lewdness. One form
was called indecent exposure, defined as the exposing of the
actor's genitals for arousing or sexually gratifying the actor or
any person other than the actor's spouse "under circumstances in
which [the actor] knows his conduct is likely to cause affront or
alarm." 1 Final Report, supra, § 2C:14-5, at 63. The indecent
exposure under the proposed Code was grouped with the Chapter 14
offenses because exposure of the genitals for sexual
gratification is often interpreted as threatening sexual
aggression. 2 Final Report, supra, commentary to § 2C:14-5, at
200-01.
The second form of lewdness in the proposed Code was
identified as public indecency or open lewdness. It was defined
as "any lewd act, which [the actor] knows is likely to be
observed by others who would be affronted or alarmed." 1 Final
Report, supra, § 2C:34-1, at 120. That proposed offense was
generally intended to prohibit conduct that amounted to "gross
flouting of community standards in respect to sexuality or nudity
in public." 2 Final Report, supra, commentary to § 2C:34-1, at
301.
Although the proposed Code did not further define lewdness,
decisional law described it as "conduct of a lustful, lecherous,
lascivious or libidinous nature." State v. Dorsey,
64 N.J. 428,
431 (1974). It was also described as importing "some degree of
sexual aberration or impurity [and] denot[ing] gross and wanton
indecency in the sexual relations." State v. Brenner,
132 N.J.L. 607, 610 (E & A 1945). Blackstone defined "'open and notorious
lewdness' at common law as 'some grossly scandalous and public
indecency.'" Ibid. (quoting
4 Blk. Com. 64). Thus, neither form
of lewdness in the proposed Code included touching by the actor
or the victim as occurred in the present case.
The lewdness statute under which defendant was convicted of
two fourth-degree offenses was enacted as part of the Code in
1978. It provides:
a. A person commits a disorderly persons
offense if he does any flagrantly lewd and
offensive act which he knows or reasonably
expects is likely to be observed by other
nonconsenting persons who would be affronted
or alarmed.
b. A person commits a crime of the fourth
degree if:
(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely
to be observed by a child who is
less than 13 years of age where the
actor is at least four years older
than the child.
(2) He exposes his intimate parts
for the purpose of arousing or
gratifying the sexual desire of the
actor or of any other person under
circumstances where the actor knows
or reasonably expects he is likely
to be observed by a person who
because of mental disease or defect
is unable to understand the sexual
nature of the actor's conduct.
c. As used in this section:
"lewd acts" shall include the exposing of
the genitals for the purpose of arousing or
gratifying the sexual desire of the actor or
of any other person.
Therefore, under the Code, lewdness can be either a disorderly persons offense or a fourth-degree crime. It is a disorderly persons offense whenever the actor engages in any flagrantly lewd and offensive act, including exposing the actor's own genitals regardless of whether done for the actor's sexual arousal or gratification, which the actor knows or reasonably expects is likely to be observed by other non-consenting persons over the age of thirteen years who would be affronted or alarmed by the conduct. N.J.S.A. 2C:14-4a.
Whether such exposure becomes fourth-degree lewdness depends on the identity of the victim. Fourth-degree lewdness under subsection "b(1)" occurs when the victim is under thirteen and the actor is at least four years older than the victim. N.J.S.A. 2C:14-4b(1). When the victim suffers from a mental disease or
defect that makes the victim unable to understand the sexual
nature of the actor's conduct, an exposure is fourth-degree
lewdness under subsection "b(2)." N.J.S.A. 2C:14-4b(2).
Under the Code, criminal mental culpability frequently helps
to determine both the nature of the substantive offense and its
gradation. The Code contains four states of criminal mental
culpability: purposely, knowingly, recklessly, and negligently.
N.J.S.A. 2C:2-2(a). Those four mental states represent the
Code's attempt "'to achieve greater individual justice through a
closer relation between guilt and culpability.'" State v.
Harmon,
104 N.J. 189, 201 (1986) (quoting Knowlton, Comments Upon
the New Jersey Penal Code,
32 Rutgers L. Rev. 1, 2 (1979)).
Fourth-degree lewdness consists of an actor intentionally
"exposing" or displaying himself or herself for sexual arousal or
gratification under circumstances in which the actor "knows or
reasonably expects" that he or she is likely to be observed by a
child less than thirteen years old. N.J.S.A. 2C:14-4b(1). Thus,
lewdness is limited to exposing or displaying an actor's intimate
parts rather than touching them. For example, a "flasher" or
"streaker" may expose the genitals without touching them.
The underlying conduct for second-degree-tender-years-sexual
assault, in contrast, involves the actor "intentionally" touching
his or her intimate parts (self-contact or victim-contact) for
arousal or sexual gratification "in view" of an underage child
whom the actor "knows" to be present. N.J.S.A. 2C:14-2b, 14-1d.
Although the exposure required for lewdness and the touching
required for sexual assault both must be intentional and for the
purpose of arousal or gratification, the actor's mental state
toward the underage child is significantly different for each
offense. The non-contact lewdness offense requires the actor to
expose or display himself or herself "know[ing] or reasonably
expect[ing]" that an underage child will observe the conduct.
Under the Code, this mens rea equates with the actor knowing or
intending that a child view him or her. See N.J.S.A. 2C:2-2b(1)
(stating person acts purposely if he is aware of the existence of
the attendant circumstance or he "believes or hopes" that it
exists); N.J.S.A. 2C:2-2b(2) (stating person acts knowingly if he
is aware of the existence of an attendant circumstance or is
aware of the existence of a high probability of its existence).
In contrast, sexual assault requires only that the actor engage
in a sexual touching "in view of" an underage child whom the
actor knows to be present.
Clearly, then, unlike lewdness, sexual assault does not
require the underage child to actually observe the touching. The
requirement "in the view of" an underage child does not require
any mens rea at all; it is a factual question: Was the
prohibited act done in a child's field of vision or not?
Alternatively, "in view of" could be interpreted to mean that
there were unreasonable risks that an underage child present
might view the act. Here, evidence established that defendant
knew the children were present and that he was in their field of
vision. The testimony that the children actually saw the
prohibited act establishes that the act must have been in their
view. Thus, where there is an actual underage child who has
actually viewed the defendant and as in this case, whose presence
is known by the defendant, the Court need not reach the more
difficult question of whether the defendant would be guilty if he
engaged in sexual contact in front of a child whom he knew to be
present and within view, but who, for whatever reason, did not
actually view or observe the conduct. In the latter situation,
the "in view of" standard could constitute a basis for strict
liability under the Code and the defendant might be guilty
regardless of whether a child whom he knew to be present actually
witnessed the act. In contrast, the "in view of" standard might
constitute a basis for guilt if there was an unreasonable risk
that a child might see the defendant engage in the sexual
contact. Those issues, however, are not raised by the facts in
this case, and we decline to reach them.
There are sound reasons for the distinction between fourth-degree lewdness and tender-years-sexual assault, as well as their
different mens rea requirements. Lewdness as an observable act
is not as egregious as the tender-years-sexual assault. It is
more shocking and threatening to observe an actor touching
intimate parts for arousal or gratification than it is to observe
an exposure or display. Moreover, conduct involving sexual
contact is not ambiguous -- its gratification comes from the
contact; its purposefulness and intent are crystal clear, and
consequently the severity of its impact, if it is actually seen,
is more predictable, and the risk of harm, even if it is not
seen, is greater. Mere exposure, in contrast, can be a more
ambiguous form of conduct. It is not inherently or obviously
gratifying to expose the genitals; rather, gratification comes
only from the subjective belief by the actor that he or she is
being viewed.
We are compelled by the strictures and language of the Code
to conclude that the Legislature did not create a unified crime
of tender-years-sexual assault and fourth-degree lewdness.
Ridgeway, supra, 256 N.J. Super. at 206. Our conclusion is
buttressed by the reasoning used in pre-Code decisional law
holding that private lewdness did not encompass the crimes of
adultery, fornication, and obscenity simply because, had the act
of fornicating been committed openly, it would have been
considered public lewdness. Dorsey, supra, 64 N.J. at 431-32.
The Court's rationale was that adultery, N.J.S.A. 2A:88-1,
fornication, N.J.S.A. 2A:110-1, and obscenity, N.J.S.A. 2A:115-1.1 to -3.10, were proscribed by separate enactments. Dorsey,
supra, 64 N.J. at 432. Similarly, the tender-years-sexual
assault and fourth-degree lewdness are proscribed by separate
enactments and have different elements.
The Legislature determined that a person who touches his or
her own intimate parts for sexual arousal or sexual gratification
in the presence of children below the age of thirteen poses a
higher risk to the safety and welfare of those children than to
children who are older. That intent is corroborated by the fact
that although the Legislature created a third-degree offense of
aggravated criminal sexual contact, that offense is restricted to
victims who are at least thirteen and less than sixteen.
N.J.S.A. 2C:14-3a. That offense also requires proof of a
familiar relationship between the actor and the child or one of
the specified aggravating circumstances. Ibid. What emerges is
that the age of the victim is critical. A sexual touching in the
presence of a child less than thirteen years old is a second-degree sexual assault if the other elements are present. When
the sexual touching also includes exposing intimate parts, as
occurred in the present case, lewdness becomes a lesser-included
offense of the sexual assault and merger is required by the Code.
N.J.S.A. 2C:1-8a(1); State v. Diaz,
144 N.J. 628, 637-38 (1996).
We hold that when the pertinent sections of the Code are
read together, the meaning and scope of the tender-years-sexual
assault are clear and unambiguous. Although the substantive
offense is criminalized at N.J.S.A. 2C:14-2b, that statute must
be read in conjunction with N.J.S.A. 2C:14-1b, which defines
victims, N.J.S.A. 2C:14-1d, which defines sexual contact,
N.J.S.A. 2C:2-2(a), which defines the requisite mental
culpability, and N.J.S.A. 2C:14-3a, which defines aggravated
criminal sexual contact so as to preclude a prosecution of such
an offense when the victim is less than thirteen years old
because the appropriate offense is the tender-years-sexual
assault.
We also agree with the Appellate Division dissenting
member's conclusion that the evidence was sufficient to permit
the jury to conclude that defendant committed an act of sexual
contact with K.B. and E.B. and that specific victimization was
not required. The majority concluded that because defendant did
not look at the two children, or make any gesture toward either
of them, and because neither of the children was in close
proximity to defendant, the State failed to prove that defendant
had sexual contact with either of the children. Zeidell, supra,
299 N.J. Super. at 619.
As we previously noted, the tender-years-sexual assault in
this case required proof of sexual contact of defendant's own
genitals in view of K.B. and E.B., whom defendant knew to be
present. Based on the evidence, the jury could reasonably have
concluded that it was practically certain that defendant saw the
children. The jury apparently believed the children when they
testified that they saw defendant masturbating as they sat on the
beach approximately seventy-five feet from where defendant's
conduct occurred. Nothing obstructed their view of him, and
nothing obstructed his view of them. Under the Code's knowing
criminal culpability standard, the State was obligated to prove
that there was a high probability that defendant was aware of the
presence of the children on the beach while masturbating. K.B.,
E.B. and their cousins were the only children on the beach at the
time. The jury could consider the clear visibility of the
children coupled with the fact that they saw him, and the fact
that Officer Jenkins saw the children on the beach only minutes
before the criminal act occurred, when deciding the mental
culpability issue.
Although the Code does not define the word "present," it
must nevertheless be accorded its ordinary meaning absent an
indication of some special meaning. State v. Afanador,
134 N.J 162, 171 (1993).
The plain meaning of "presence" is an "[a]ct, fact, or state
of being in a certain place and not elsewhere, or within sight or
call, at hand, or in some place that is being thought of."
Black's Law Dictionary 1183 (6th ed. 1990). The Legislature has
given no indication of an intent to attribute a special meaning
to "presence." The ordinary meaning of "presence" here is that
the actor knows that young children can see the actor touching
his or her intimate parts. In the face of the compelling
evidence presented, the jury could reasonably have found that
defendant knew the children could and would see him touching his
genitals. The viewing area included the beach where the children
had been playing. Therefore, all children known to a defendant
to have been within an eye-shot of his or her conduct were
present when the proscribed conduct occurred.
We reject the Appellate Division majority's attempt to
engraft a new element to the offense by requiring the actor to
make some overt act toward the victims to induce their
participation in the actor's conduct. Reliance on Ridgeway for
that proposition is misplaced. Although that was a fact in
Ridgeway, the court properly did not conclude that it was a
required element. Ridgeway, supra, 256 N.J. Super. at 205-06.
Sufficient victimization occurs when, in view of an underage
child whom the actor knows is present, an actor commits an act of
sexual contact by touching himself or herself, by a solicited or
coerced touching of the actor's intimate parts by the victim, or
by the actor touching the child's intimate parts. Under each
scenario, the child becomes a victim in that the child has "been
subjected to [a sexual contact] proscribed by" the Code.
N.J.S.A. 2C:14-1b. Further evidence of victimization in this
case is based on the fact that K.B. and E.B. were extremely
frightened by what they observed. The Code does not require the
actor to solicit or invite the young victims to observe the
proscribed conduct before the conduct ripens into a tender-years-sexual assault.
Although the appeal is before us based on the dissenting opinion that does not raise an issue of excessiveness of sentence, defendant raised that issue in the Appellate Division. Zeidell, supra, 299 N.J. Super. at 617, 622. Defendant contended "that the trial judge should not have imposed maximum ten-year base terms on the second-degree convictions." Ibid. In view of the Appellate Division's disposition, the court found it
"unnecessary to discuss the sentencing issue." Id. at 622. In
light of our decision, we remand the case to the Appellate
Division to decide the sentencing issue.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Appellate Division to decide the
excessiveness of sentence issue.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, and
GARIBALDI join in JUSTICE COLEMAN's opinion. JUSTICE STEIN has
filed a separate dissenting opinion. JUSTICE O'HERN did not
participate.
SUPREME COURT OF NEW JERSEY
A-
97 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
THOMAS G. ZEIDELL,
Defendant-Respondent.
STEIN, J., dissenting.
I would affirm the judgment of the Appellate Division
substantially for the reasons articulated in its opinion. State
v. Zeidell,
299 N.J. Super. 613, 619-22 (App. Div. 1997). As
that opinion clearly demonstrates, our Code contemplates an act
of specific victimization to sustain a conviction under N.J.S.A.
2C:14-2b. See State v. Ridgeway,
256 N.J. Super. 202, 204-06
(App. Div.)(upholding guilty plea to sexual assault when facts
indicated that defendant specifically targeted eleven-year-old
girl to witness defendant touching himself), certif. denied,
130 N.J. 18 (1992); Cannel, New Jersey Criminal Code, Annotated,
comment 4 on N.J.S.A. 2C:14-1 (1997-98)(noting that "when the
actor touches himself . . . and either forces the victim to
observe or is aware of observation by a victim under the critical
age there is enough of an actor/victim relationship to amount to
criminal sexual contact"). This record reveals no public act
performed by defendant with sufficient intent or awareness that
it be witnessed by children under the age of thirteen.
NO. A-97 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
THOMAS G. ZEIDELL,
Defendant-Respondent.
DECIDED June 4, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Stein