The Camden County Law Division concluded in relevant part: Further, through his assertion, defendant again attempts to trivialize the content of his message, this time by arguing that the online setting itself somehow lessens the severity of its content, and, for this reason, a prosecution therefor would not deter future perpetrators. This is simply another iteration of his prior argument that his message does not rise to the level of “sexual conduct” because it was not a physical act. As stated hereinabove, that defendant chose Instagram as the vehicle by which to deliver his message does not, by that very fact, remove it from the realm of sexual conduct. See supra at pp. 11-12. See also Maxwell, (“There is nothing in N.J.S.A. 2C:24-4 which requires physical presence and . . . accordingly, sexually explicit conversation which rises to the level of ‘sexual conduct’ can indeed be communicated by telephone.”). Accordingly, the court is not persuaded that a prosecution for the very act against which N.J.S.A. 2C:24-4 seeks to protect would not deter future offenders.
d. Dismissal is Not Warranted under Subsection (c)
N.J.S.A. 2C:2-1(c) provides that dismissal is warranted where the defendant’s conduct presents other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The court concludes that no such extenuations exist in the present case. First, defendant’s argument that this constitutes an example of overzealous prosecution is a bald assertion without any evidentiary support and is belied by the fact that he was not charged for a more serious offense. Second, his reliance on character and context is unpersuasive as these factors are irrelevant in the instant application. Lastly, the court is not persuaded that a prosecution for the very act against which N.J.S.A. 2C:24-4 seeks to protect would not deter future offenders. For these reasons, these circumstances do not constitute extenuations and, accordingly, dismissal under subsection (c) is not warranted.
CONCLUSION
For the foregoing reasons, it cannot be said that the risk of harm to society caused by defendant’s Instagram message to J.T. asking her to “show me them huge rockets of your [sic]” is so trivial as to warrant dismissal of the prosecution. Accordingly, defendant’s motion for a de minimis dismissal is denied with prejudice. The court will issue an order consistent with this decision.
The Court repeatedly uses the phrase “the very act against which N.J.S.A. 2C:24-4 seeks to protect.” This seems to be an exaggeration when comparing a request for a topless image with the other sexual acts prohibited by the statute. Those acts include: (a)Sexual intercourse; or (b)Anal intercourse; or (c)Masturbation; or (d)Bestiality; or (e)Sadism; or (f)Masochism; or (g)Fellatio; or (h)Cunnilingus.
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