S3500

An Act concerning sexual assault and amending N.J.S.2C:14-2.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:14-2 is amended to read as follows:

2C:14-2. Sexual assault. a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The victim is less than 13 years old;

(2) The victim is at least 13 but less than 16 years old; and

(a) The actor is related to the victim by blood or affinity to the third degree, or

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status including but not limited to, by virtue of the actor’s employment through, or registration with, a care provider service, or

(3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

(4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

(6) The actor uses physical force or coercion and severe personal injury is sustained by the victim.

(7) The victim is one 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.

Aggravated sexual assault is a crime of the first degree.

Except as otherwise provided in subsection d. of this section, a person convicted under paragraph (1) of this subsection shall be sentenced to a specific term of years which shall be fixed by the court and shall be between 25 years and life imprisonment of which the person shall serve 25 years before being eligible for parole, unless a longer term of parole ineligibility is otherwise provided pursuant to this Title.

b. An actor is guilty of sexual assault if he commits an act of sexual contact with a victim [who] under the following circumstances:

(1) The victim is less than 13 years old and the actor is at least four years older than the victim;

(2) The victim is less than 16 years old and the actor obtained supervisory or disciplinary power over the victim by virtue of the actor's employment through, or registration with, a care provider service.

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim 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;

(3) The victim is at least 16 but less than 18 years old and:

(a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or

(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.

Sexual assault is a crime of the second degree.

A defendant convicted under paragraph (2) of subsection b. of this section shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at five years during which the defendant shall be ineligible for parole.

As used in this section, "care provider service" means a child care center licensed pursuant to the “Child Care Center Licensing Act,” P.L.1983, c.492 (C.30:5B-1 et seq.) or a family day care provider service licensed pursuant to the “Family Day Care Provider Registration Act,” P.L.1987, c.27 (C.30:5B-16 et seq.), or an on-call type of child care referral service which includes screening of child care provider applicants.

d. Notwithstanding the provisions of subsection a. of this section, where a defendant is charged with a violation under paragraph (1) of subsection a. of this section, the prosecutor, in consideration of the interests of the victim, may offer a negotiated plea agreement in which the defendant would be sentenced to a specific term of imprisonment of not less than 15 years, during which the defendant shall not be eligible for parole. In such event, the court may accept the negotiated plea agreement and upon such conviction shall impose the term of imprisonment and period of parole ineligibility as provided for in the plea agreement, and may not impose a lesser term of imprisonment or parole or a lesser period of parole ineligibility than that expressly provided in the plea agreement. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding a negotiated reduction in the term of imprisonment and period of parole ineligibility set forth in subsection a. of this section.

(cf: P.L.2014, c.7, s.1)

2. This act shall take effect immediately.

STATEMENT

This bill amends N.J.S. 2C:14-2, to establish enhanced penalties for sexual assault crimes committed by certain persons who exploit their position as a caregiver to victimize minors.

Aggravated sexual assault. N.J.S. 2C:14-2 provides that aggravated sexual assault is committed when an actor commits sexual assault under any of seven differing scenarios, two of which are dependent upon the age of the victim. One scenario occurs where the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status. The bill expressly clarifies that this scenario includes, but is not limited to, instances where the actor has the power over the victim by virtue of the actor’s employment through, or registration with, a care provider service. Aggravated sexual assault is graded as a crime of the first degree. A crime of the first degree is ordinarily punishable by up to 20 years imprisonment, a fine of up to $200,000 or both.

Sexual assault. N.J.S. 2C:14-2 provides that sexual assault is committed under various circumstances. Under subsection b. sexual assault occurs when an actor commits sexual contact with a victim less than 13 years old and the actor is at least four years older than the victim. The bill revises sexual assault under subsection b. to add the circumstance where the victim is less than 16 years old and the actor obtained supervisory or disciplinary power over the victim by virtue of the actor's employment through, or registration with, a care provider service. Sexual assault is graded as a crime of the second degree. A crime of the second degree is ordinarily punishable by up to 10 years imprisonment, a fine of up to $150,000 or both.

The bill further adds an enhancement to a conviction under these circumstances by providing that the defendant shall be sentenced to a minimum term of imprisonment. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at five years, during which the defendant shall be ineligible for parole.

Under the bill, a "care provider service" means a child care center licensed pursuant to the “Child Care Center Licensing Act,” P.L.1983, c.492 (C.30:5B-1 et seq.) or a family day care provider service licensed pursuant to the “Family Day Care Provider Registration Act,” P.L.1987, c.27 (C.30:5B-16 et seq.), or an on-call type of child care referral service which includes screening of child care provider applicants.

Parents and guardians increasingly may be relying on child care services obtained through a licensed provider or a professional referral service. In some instances involving referral services, the caregiver is an employee of the service, and in other instances, the caregiver is registered by the service following a vetting process.

It is the sponsor’s view that a criminal actor who affiliates with a care provider service affirmatively seeks to enhance his or her legitimacy and to assure parents and guardians of their safety and reliability as a caregiver, thereby potentially gaining access to vulnerable victims. That conduct may be viewed as differing in motivation from other crimes arising from the same conduct.