New Jersey Consent Defense
New Jersey consent defense is an affirmative defense, meaning that the defendant has the burden of proof by the preponderance of the evidence standard.
There are two instances when consent is a defense.
The consent of the victim to the conduct charged or to the result of the conduct is a defense if it negatives an element of the offense.
An example of this would be a prosecution for lewdness where the state among other things has to prove that the conduct was likely to be observed by non consenting persons.
Consent will also be a defense if the consent precludes the infliction of the harm sought to be prevented by the law defining the offense.
This is the situation where the definition of the offense does not address itself to the victim’s consent or the lack of consent but it is clear that the essence of the offense includes this element.
An example is the offense of simple assault when the consent destroys the fear required.
There are limitations on the New Jersey consent defense to bodily harm or threats to do bodily harm.
New Jersey Consent defense is a defense to conduct which constitutes an offense because it causes or threatens bodily harm only in three instances.
First, the bodily harm consented to or threatened by the conduct was not serious.
Secondly, it is a defense when the conduct and harm were reasonable foreseeable hazards of a joint participation in a concerted activity of a kind not prohibited by law such as boxing.
Thirdly, the consent is a defense when it establishes a justification such as consent to bodily harm which results from medical treatment.
Consent does not constitute a defense when the consent given by a person legally incompetent such as youth - such as in the case of statutory sexual assault or statutory rape, mental disease or defect or intoxication because the person is unable to make a reasonable judgment with respect to the harmfulness of the conduct.
An example would be sexual contact with a person who is feeble minded.
Finally, there is no consent if the consent is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.
In such a case, the burden is on the state to prove there was no consent or consent was ineffective.
Do you wish to discuss a possible New Jersey consent defense with a NJ criminal defense lawyer?