This was due to the fact that defense attorneys often attempted to prove consent by showing that a victim did not resist the assault or had a sexual history suggesting that she would have consented to the sexual contact. Now, N.J.S.2C:14-2 no longer contains a requirement that the perpetrator overcame a resisting victim. Instead, in cases of forcible rape, the Code simply requires that the defendant: committed the assault during the course of certain specified felonies (N.J.S.2C:14-2(a)(3); was armed or seemed to be armed (N.J.S.2C:14-2(a)(4); acted with another and used physical force or coercion N.J.S.2C:14-2(a)(5); used physical force or coercion N.J.S.2C:14-2(a)(5) and -(1); the victim is physically or mentally incapacitated N.J.S.2C:14-2(a)(7). Therefore, the Code names a variety of situations where sexual intercourse between a victim and a defendant is rape, without evidence of any type of coercion.
Maria, a single mother, goes on her third date with John. They return to her apartment, where Maria's 4-year-old daughter is sleeping in the bedroom. Maria pays the babysitter, who returns to her own apartment in the building. Maria offers John a cup of coffee and they eventually end up kissing on the couch. John attempts to undress Maria, at which time she tells him no. John tells Maria that if she does not have sex with him, he will hurt her little daughter. Maria lays there as John has sex with her. Prior to the revisions in the Code, this act would not have been considered sexual assault, because Maria offered...
However, considerable evidence shows that rape victims who resist sustain greater physical injuries than rape victims who do not resist. Furthermore, Maria was concerned that resisting would lead to John harming her daughter. To require her to show resistance would have denied that John committed a crime, though it was clear that he had non-consensual sex with Maria.
The Code also enacted a "rape shield" law protecting much of a victim's sexual history from being admissible at trial, except for under extremely limited circumstances. N.J.S.2C:14-7 states that:
a. In prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of a child in violation of N.J.S.2C:24-4 or the fourth degree crime of lewdness in violation of subsection b. Of N.J.S.2C:14-4, evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility
