On November 13, 2019, a three-judge appellate panel decided the Gloucester County case of C.R. v. M.T. The principal issue under 2C:14-13 is the level of proof required when an alleged sexual assault victim states that s/he could not have consented due to voluntary intoxication.
Judge Clarkson Fisher wrote in relevant part: In ascertaining what the Legislature meant when requiring that alleged victims prove the first prong – an act of “nonconsensual” sexual contact or penetration, N.J.S.A. 2C:14-16(a)(1) – we look to N.J.S.A. 2C:14-2(a)(7), which defines a sexual assault victim as “one whom the actor knew or should have known was among other things “mentally incapacitated.” The phrase “mentally incapacitated” is defined as that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent.
This definition of “mentally incapacitated” – when considered in its context – gives some pause because that portion of N.J.S.A. 2C:14-1(i) we underscored above might suggest a requirement that the alleged victim prove her involuntary intoxication, that is, that she ingested intoxicants “administered to her without her prior knowledge or consent.” Since the evidence demonstrated only that plaintiff voluntarily drank on the evening in question, we must determine whether the underscored phrase modifies “intoxicant.”
In answering any question about a statute’s intent, we look for the plain meaning of the words and phrases the Legislature utilized. State v. Olivero (2015); McCann v. Clerk of City of Jersey City, (2001). Because the Legislature listed the substances – “narcotic, anesthetic, intoxicant, or other substance” – that could generate mental incapacity and followed that list with a qualifying phrase – “administered to that person without his prior knowledge or consent” – we necessarily engage the doctrine of the last antecedent, which holds that, absent an apparent contrary intention, “a qualifying phrase within a statute refers to the last antecedent phrase.” State v. Gelman(2008) (citing 2A Sutherland Statutory Construction § 47.33, at 487-88 (7th ed. 2007)). This doctrine requires our conclusion that the qualifying phrase applies only to “other substance” and not “intoxicant.” To convey some other meaning, the Legislature would have had to insert a comma after “other substance,” a mere punctuation mark to be sure, but one that would grammatically call for a different result.
This seems like an overly-complicated analysis. Whether the intoxication at issue was voluntary involuntary should not matter. The key questions for determining consent is whether the alleged victim was capable of controlling her conduct and whether the actor should have reasonably known if the answer is “no.”
