The De Minimis Statute (Part 3)

Judge Katz continued in relevant part: Such an argument is unpersuasive. J.T. indicated and defendant conceded that “huge rockets” referred to the child’s breasts. See supra at pp. 5-6. Such a request, in light of all the circumstances, was neither facetious nor couched in humor. It was made by an adult male to an underage female, based upon a relationship developed in a school hierarchy. Moreover, defendant’s suggestion that his message cannot constitute “sexual conduct” because it was not an actual act is unpersuasive as well, as it is well recognized that sexual conduct need not be limited to actual contact. See supra at pp. 11-12. The content of the message, and the manner in which it was sent, constitutes “sexual conduct” within the meaning of N.J.S.A. 2C:24-4(a)(1).

Through his Instagram message, defendant, an adult male, sent a child a message for the sole purpose of seeking a photograph of her breasts. Asking a child to “send nudes” is unequivocally sexual conduct. See State ex rel. A.B., (Law Div. 1999) (finding that a male juvenile who took and distributed nude photographs of a female juvenile violated N.J.S.A. 2C:24-4(b)(3), which prohibits child pornography). Further, defendant’s request that the court accept his interpretation of his message as being a joke or cat call and nothing more, is belied by the fact that a Camden County Grand Jury returned an indictment against him, and, in so doing, clearly found that the message constituted “sexual conduct.” The message at issue was the exact type of conduct that the statute was enacted to prohibit.

It is doubtful that the grand jury had that definition of “sexual conduct” before it. The overwhelming majority of charges proposed by county prosecutor’s offices. They almost always rubber-stamp a proposed indictment without asking any questions of the prosecutor’s witness(es). This is the natural result of putting complicated legal concepts before lay people that are not familiar with each other and concerned with asking a “stupid question.”