Consensual Juvenile Sex & Child Endangerment: Part 1

On August 9, 2017, a three-judge appellate panel decided the case of State in the Interest of D.M. The principle issue was whether a defendant who was less than four years older than the alleged victim could be adjudicated delinquent of child endangerment under N.J.S.A. 2C:24-4(a) even though he was acquitted of sexual assault under N.J.S.A. 2C:14-2(b) because there was no finding of penetration.

In relevant part, the court held that in an adult criminal case where no penetration is found, the factfinder could consider the lesser-included second-degree crime of sexual assault of a child under the age of thirteen, N.J.S.A. 2C:14-2(b). The definition of sexual contact is: 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. N.J.S.A. 2C:14-1(d).

Sexual assault of a child by sexual contact, however, requires a four-year age difference between the actor and the victim. N.J.S.A. 2C:14-2(b) states: “An actor is guilty of sexual assault if he commits 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.” Logically, the purpose of this section is to avoid criminalizing non-coercive sexual contact between two juveniles who are less than four years apart in age. See Assembly Judiciary, Law and Public Safety, and Defense Committee Statement to Assembly Bill No. 3279, at 78-79 (June 28, 1979) (indicating that the Legislature did not intend to criminalize sexual experimentation between juveniles of similar ages).

As the trial judge stated in his opinion, because he did not find sexual penetration or coercion, and D.M. was less than four years older than Zane, the judge did not consider lesser-included sexual crimes. He considered only the lesser-related third-degree crime of endangering the welfare of a child. Both the State and juvenile had agreed to that possible disposition when the issue of penetration was alleged and unresolved.

Note that a judge decided the case at the trial level because juveniles are not entitled to jury trials. This is an increasingly contentious issue, especially in the realm of juvenile sex offenses because the consequences of adjudication often follow the juvenile-defendant throughout their adult lives.