State v. Lee, 417 N.J. Super. 219 (App. Div. 2010)
The Appellate Division held that where a defendant’s sexual contact is with his own intimate parts in view of an adult victim, conviction on a charge of criminal sexual contact requires proof of physical force or coercion beyond defendant’s act of touching himself. The defendant had followed the victim into an elevator and then allegedly exposed his penis to her and began to masturbate. The defendant was charged with criminal sexual contact in violation of N.J.S.A. 2C:14-3b, which requires that one of the circumstances in N.J.S.A. 2C:14-2(c)(1)-(4) be met. The relevant section in this matter was N.J.S.A. 2C:14-2(c)(1), which requires the use of physical force or coercion. The court noted that the defendant did not use any physical force because he never touched her, made any threats to her, or made any other form of communication to her. There was no invasion of her bodily integrity so the state was not relieved of the obligation to show physical force or coercion. As an element of fourth degree sexual assault, when the touching is of the actor himself, the phrase “physical force” means a force other than the touching. The court noted that masturbation in view of a non consenting adult can violate the lewdness statute, which is only a disorderly persons offense.
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