December 30, 2010

STATE v. LEE A-1246-09T2 12-17-10

TATE v. LEE A-1246-09T2

To charge the act of masturbation in view of an adult as fourth-degree criminal sexual contact under N.J.S.A. 2C:14-3b and 2C:14-2c(1), rather than disorderly persons lewdness under N.J.S.A. 2C:14-4, the State must have evidence that the actor used physical force or coercion. Defendant's touching himself does not satisfy that element of the offense. The holding of State in the Interest of M.T.S., 129 N.J. 422 (1992) — that physical force is equivalent to the act of sexual contact or penetration without affirmative and freely-given consent of the victim — applies to invasion of the bodily integrity of the victim.

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