On December 17, 2025, a three-judge appellate panel decided the Middlesex County case of State v. K.W. The principal issue under N.J.S.A. 2C:14-2 concerned whether the mistaken application of a statutory amendment that occurred after the alleged offense violated Ex Post Facto principles.
Judge Vinci write for the Appellate Division in relevant part: There is no dispute the Accusation, and as a result, the court’s jury instruction, referred incorrectly to the statutory language effective January 21, 2020, after the alleged sexual assault in this case. Based on our de novo review, however, we are convinced defendant’s claim that the court’s instruction required “less or different testimony” than the law in effect at the time of the offense lacks merit.
In M.T.S., our Supreme Court established the element of “physical force” in the pre-2020 version of N.J.S.A. 2C:14-2(c)(1) was satisfied if the defendant committed an act of sexual penetration “without the affirmative and freely-given permission of the victim” and that the statute did not “require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration.” Consistent with M.T.S., the Model Jury Charge applicable to the pre-2020 version of the statute instructed that “physical force is defined as the commission of the act of sexual penetration without the victim’s freely and affirmatively given permission to the specific act of penetration alleged to have occurred.”
In this case, the court instructed the jury that the State was required to prove beyond a reasonable doubt “defendant committed the act of sexual penetration without the victim’s affirmative and freely-given permission.” Had the court used the correct Model Jury Charge, it would have instructed the jury that the State was required to prove beyond a reasonable doubt defendant used “physical force” defined as “the commission of the act of sexual penetration without the victim’s freely and affirmatively given permission.”
Under either version of the statute, the State was required to prove the same thing – that defendant committed the act of sexual penetration “without the victim’s freely and affirmatively given permission.” Nothing more was required under the pre-2020 statute because the statute never required “a showing of force in addition to that entailed in the act of sexual penetration itself.” Because the jury instruction the court gave in this case did not require less or different evidence or testimony than was required under the pre-2020 version of the statute, defendant was not convicted under an ex post facto law.
The Court’s reasoning begs the following question: if the State was required to prove the same thing in pre-amendment cases that it is required to prove in post-amendment cases, what is the purpose behind the amendment?
Ex post facto means “after the fact.” Ex post fact criminal laws are prohibited because they punish actions that were legal at the time that they occurred. Retroactively increasing the punishment or altering the evidence rules for criminal acts is also prohibited under our state and federal constitutions.
