Consent Laws
New Jersey

Last Updated: March 2020
Defining Consent Answer

How is consent defined?

New Jersey’s criminal code includes a generally applicable definition of consent as follows:

  1. In general: The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negates an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
  2. Consent to bodily harm: When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
    1. The bodily harm consented to or threatened by the conduct consented to is not serious; or
    2. The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
    3. The consent establishes a justification for the conduct under chapter 3 of the code.
  3. Ineffective Consent: Unless otherwise provided by the code or by the law defining the offense, assent does not constitute consent if:
    1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
    2. It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
    3. It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

N.J. Stat. Ann. § 2C:2-10

Does the definition require "freely given consent" or "affirmative consent"?

In order to establish effective consent by the putative victim of a sexual assault, a defendant must demonstrate the presence of “affirmative and freely-given permission....” State v. Cuni, 733 A.2d 414, 424, 159 N.J. 584, 603 (1999).






Capacity to Consent Answer

At what age is a person able to consent?

16 years old. N.J. Stat. Ann. § 2C:14-2(c)(3).

Does difference in age between the victim and actor impact the victim's ability to consent?

Yes.

An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person who is less than 13 years old, or if the victim is 13, 14, or 15 years old and the actor is:

    • related to the victim by blood or affinity to the third degree, or
    • has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional, or occupational status, or
    • is a resource family parent, a guardian, or stands in loco parentis within the household

N.J. Stat. Ann. § 2C:14-2(a)

An actor commits sexual assault if he or she 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. N.J. Stat. Ann. § 2C:14-2(b).

An actor commits sexual assault if he or she commits an act of sexual penetration with a victim that is 13, 14, or 15 years old and the actor is at least four years older than the victim. N.J. Stat. Ann. § 2C:14-2(c)(4).

Does elderly age impact the victim’s ability to consent?

No.

Does developmental disability and/or mental incapacity impact the victim’s ability to consent?

Yes, it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was intellectually or mentally incapacitated, or has a mental disease or defect which renders the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. N.J. Stat. Ann. § 2C:14-2(a)(7).

Consent is ineffective if:

    1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
    2. It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
    3. It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

N.J. Stat. Ann. § 2C:2-10

Does physical disability, incapacity or helplessness impact the victim’s ability to consent?

Yes, it is aggravated sexual assault to commit an act of sexual penetration with any person whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. N.J. Stat. Ann. § 2C:14-2(a)(7).

Physically helpless includes when a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act. N.J. Stat. Ann. § 2C:14-1(g).

Consent is ineffective if:

    1. It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
    2. It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

N.J. Stat. Ann. § 2C:2-10

Does consciousness impact the victim’s ability to consent?

Yes, a person that is unconscious is physically helpless, and it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was physically helpless. N.J. Stat. Ann. § 2C:14-2(a)(7); N.J. Stat. Ann. § 2C:14-1(g).

Consent is ineffective if:

    1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
    2. It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
    3. It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

N.J. Stat. Ann. § 2C:2-10

Does intoxication impact the victim’s ability to consent?

Yes, it is aggravated sexual assault to commit an act of sexual penetration with a person that the actor knew or should have known was mentally incapacitated, which includes when he or she is under the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent. N.J. Stat. Ann. § 2C:14-2(a)(7); N.J. Stat. Ann. § 2C:14-1(i).

Consent is ineffective if:

    1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
    2. It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
    3. It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

N.J. Stat. Ann. § 2C:2-10

Does the relationship between the victim and actor impact the victim’s ability to consent?

Yes.

It is sexual assault to commit an act of sexual penetration with a person that is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status. N.J. Stat. Ann. § 2C:14-2(c)(2).

It is sexual assault to commit an act of sexual penetration with a person that is at least 16 years old but less than 18 years old, and

  • (1) the actor has supervisory or disciplinary power of any nature or in any capacity over the victim;
  • (2) the actor is related to the victim by blood or affinity to the third degree; or

(3) the actor is the victim’s guardian or otherwise stands in loco parentis. N.J. Stat. Ann. § 2C:14-2(c)(3).






Defenses Answer

Is consent a defense to sex crimes?

Yes. Consent is an affirmative defense if it negates an element of the offense. In order to establish effective consent by the putative victim of a sexual assault, a defendant must demonstrate the presence of “affirmative and freely-given permission....” State v. Cuni, 733 A.2d 414, 424, 159 N.J. 584, 603 (1999).

Is voluntary intoxication a defense to sex crimes?

Generally not, unless it negates an element of the offense:

  1. Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it negates an element of the offense.
  2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
  3. Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4.1
  4. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.
  5. Definitions. In this section unless a different meaning plainly is required:
    1. “Intoxication” means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
    2. “Self-induced intoxication” means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
    3. “Pathological intoxication” means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.

N.J. Stat. Ann. § 2C:2-8.









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