Introduction of NJ Consent Laws

Entering into relationships with sexual intimacy is a natural and healthy part of being human. However, with that intimacy comes important legal considerations. The New Jersey Code of Criminal Justice, titled Title 2C, contains various laws pertaining to sexual intimacy, including laws regarding consent. Understanding New Jersey’s consent laws will help you in both avoiding legal entanglements, and also understanding what you can legally do.
Consider, for example, the situation where a person has intercourse with another person under a false pretense. One person may want to have sex, while the other person has no knowledge of the others’ intention. One party may come to truly believe that they are with the love of their life, while the other person may simply be looking for an opportunity to have casual sex. Having intercourse or engaging in any sexual activity while either person is under a false pretense can be criminal fraud, with serious consequences.
NJ consent laws are detailed throughout Title 2C, and include laws related to statutory rape (consent cannot be given by a person who is younger than the age of consent), sex between adults and minors, clergy sexual misconduct, sexual coercion and bribery, and many more. In certain circumstances, even if consent was legitimately given, an argument can be made against the legality of the transaction. This is particularly true in cases involving minors, where consent can be given legitimately but the minor was not of legal age to give consent for such particular activity.
For example , while a 16 year old may consent to sexual activity, she cannot consent to endangerment of children under NJ law, even if she agrees to participate in any type of sexual activity with a younger child. This is because a 16 year old lacks the legal authority to determine what is harmful to a child, and therefore cannot give consent to harm children.
Talking about consent in the context of sex is very complicated, not only in New Jersey, but throughout the world. There can be a fine line between consenting, and using the threat of violence to prevent a defendant from leaving a sexual situation. Even though saying "no" or trying to leave a room can mean no more than it feels, in today’s political climate even a quote from The Simpsons can end up on the president’s twitter feed.
It is also difficult to define consent. Does someone who is too drunk to stand up or lawfully drive, consents to sex? What if that alcohol leads to a blackout, and the person can’t remember the details of the encounter? Certainly, taking advantage of someone who is too drunk to stand up or legally consent to sex is illegal under NJ law.
Determining consent can be difficult, but New Jersey courts have dealt with these issues before. The legal issues surrounding consent won’t be going away anytime soon. For now, the best course of action is to understand New Jersey’s laws relating to consent, what they can mean for you and your partner, and avoid the pitfalls associated with consent.

The Age of Consent: New Jersey Statutes

Age of consent laws can be complicated to navigate. These laws can have a major impact on what types of charges individuals may be facing in an alleged sexual crime. While the age of consent in New Jersey is generally 16, there are many exceptions to this rule.
Unlike many other states that have an "age gap" provision, essentially giving specific exemptions to those who are near the same age or graduated pupils of the same public or private high school, New Jersey does not have an age gap provision. However, because the age of consent is 16, individuals who are just over that age and seeking to have sexual relations with minors can face serious criminal penalties under other statutes. As outlined in the New Jersey Code of Criminal Justice, under N.J.S.A. 2C:13-6(a), engaging in sexual conduct with a child between the ages of 13 to 15 years old is considered criminal sexual conduct. This degree of criminal sexual conduct is a crime of the second degree when an adult, a person more than four years older than that of the victim which must be at least 13-15 years old, engages in sexual penetration or touching of the offender’s own body or the victim’s body shore of penetration.
Crimes of the second degree are punishable by five to 10 years in prison and a fine up of up to $150,000. It is significantly more severe when an adult seeks to pursue sexual relationships with minors who are 12 years old or younger, and an individual faces the potential for life in prison when having sexual relations with children under the age of 12.

Various Types of Consent Under New Jersey Law

The concept of consent in the criminal context is frequently misunderstood and misused. Voluntary consent is not an exception, limitation, or defense to criminal liability in New Jersey, but an expression of social approbation of acts otherwise criminal. Acts that may technically be a crime may nevertheless be attended with such circumstances as to ground the consent of the victim or object of the act. To that end, consent in the criminal law sense, unlike consent in theory, must be freely and voluntarily given without fraud, compulsion, or undue influence. Consent must also be expressed; merely implied consent is not enough.
The Moral Penal Code of 1898 recognized the distinction between express and implied consent. It provides: "No person shall be accountable under this article for conduct which he believes to be consented to by the other." However, the Legislature eliminated this language in 1978. See N.J.S.A. 2C:2-10 (providing that "a person is not not culpable for conduct which he believes to be consent to the conduct."). It is unclear whether this change intended to eliminate the concept of implied consent from the New Jersey bailiwick of criminal law.
In the past, New Jersey courts have found no superior authority to legislative definition of consent with respect paramour’s consent to sexual liaisons with minors. In State v. DeMarle, 67 N.J.L. 399, 52 A. 159 (1902), the Supreme Court of New Jersey (then the Court of Errors and Appeals) held that consent does not exist under N.J.S.A. 2A:4-3 (with intent to defile, a paramour who has illicit sexual relations with a minor female is guilty of aggravated sexual assault and other serious offenses). Specifically, the Court found that girls who were legally too young to consent were not empowered with the legal right to give their consent.
Additionally, in State v. R.B., 183 N.J. 308 (2005), the Supreme Court analyzed the Legislature’s definition of consent with respect N.J.S.A. 2C:13-6 (a child under the age of 18 commits the offense of child luring when he or she knowingly meets another person over the internet, by electronic communication, or by another electronic device, and the actor, by engaging in one or more words, deeds, gestures, messages or other means of communication, wherein he or she attempts, entices, threatens, or otherwise persuades or causes that person to come to him or her or to another location for a sexual purpose, or to expose a specified body part for a sexual purpose). The Court held that the word "consent," in the criminal law sense, "encompasses and must be read to include the notions of freedom from coercion and mental competence." See id.
The appellate division has further refined the concept of consent. In State v. Lark, 117 N.J. Super. 368 (N.J. Super. Ct. App. Div. 1971), the court provided that "consent in the criminal law is not limited to the idea of [individual] tolerance….[a]ctual and affirmative consent with free and rational volition" is involved. See id. at 370. The court went on to explain that consent requires "an agreement to participate in an act" which gives rise to the consensual nature of the "resultant legal relationship between the parties." See id. at 372. The court concluded that the term "consent" cannot be limited to mere acquiescence or voluntary acceptance, but rather must encompass the notion that a person agrees to the act, thereby creating a consensual legal relationship between the parties.
More recently, in State v. C.P., 147 N.J. 384, 398 (1997), the Supreme Court provided that consent is not a defense to aggravated sexual assault or sexual assault, but only to the offense of criminal sexual contact. In Sade M., the Supreme Court explained that "the concept of consent is not the province of rape law, but arises from the law of contracts." See State v. Sade M., 168 N.J. 525 (2001). When the victim does not have capacity to consent, incapacity cannot be contracted or conveyed, and hence the concept of consent becomes irrelevant.

Sexual Offenses and Consent

Because consent is a central issue in New Jersey Sexual Assault cases, a definition is helpful. Under New Jersey Criminal Statute 2C:14-5(c), "consent" means that the victim "has not freely given affirmative, conscious and voluntary permission" to engage in a sexual act. "Affirmative conduct" "means clear and unambiguous words or actions." "Conscious conduct" means a person must have an awareness of what is happening sexually and then agree to it. "Voluntary conduct" means that a person is able to act without coercion. The law states that if any element of consent is absent, the contact then becomes a criminal offense. In other words, when someone explicitly declines to give verbal or physical consent, any further action may result in charges for Aggravated Sexual Assault, Sexual Assault, Criminal Sexual Contact, Criminal Restraint, Kidnapping, Luring, Child Abuse, Child Endangerment, Child Pornography or Indecent Exposure. Simply stated, the absence of consent can lead to serious legal consequences. A conviction for any of the above-listed offenses is extremely severe with penalties ranging from five (5) years in prison up to twenty (20) years. Even in cases where someone is merely accused of a sexual offense and not convicted, the outcome can impact them for a lifetime.

Consent and Minors

In New Jersey, the concept of "consent" has a much broader application beyond just sexual activity. For instance, permission from a child’s legal guardian is required for certain types of medical treatment and other procedures, including piercings or tattoos. A parent or guardian can also consent to adoption of a child. NJ consent laws are not set in stone, but are generally meant to ensure that parents’ rights are respected while also guiding the actions of minors and their guardians.
Essentially, regardless of the situation, a child is still dependent on his or her parent or legal guardian, who has the right to make most decisions on behalf of the minor. This includes, among other things, medical treatment and even marriage, though this is where the law shifts in favor of the child.
An extraordinary situation might arise if a minor seeks medical treatment that he or she thinks might be required. Assuming the sort of treatment in question isn’t life-threatening, NJ consent laws dictate that he or she must have the consent of a parent or guardian before being treated. A tattoo or piercing, for instance, needs the permission of a parent or legal guardian.
The logic behind this law is that New Jersey minors are too young and inexperienced to make such decisions about their own health. Only a parent of legal guardian is suitably qualified to determine whether a potentially expensive medical procedure is truly necessary. Yet there are some notable exceptions: for example, a minor requires special treatment like drug rehabilitation, he or she does not require parental consent. Even if the treatment’s intent is to get the minor off of drugs, NJ consent laws sometimes allow minors to make this decision on their own.
Parental consent for marriage is a slightly different issue. In this case, it is guardianship of the child that parents relinquish—albeit temporarily—for the sake of marriage. Examples would be minors who have become emancipated through marriage. Since New Jersey law only allows those 18 years of age or above to marry without parental consent, this law only applies to those under the legal age requirement. Even in these cases, there can be exceptions provided that a good reason such as pregnancy is put forth by the minor for marrying without parental consent.
Parental consent is an important right of every legal guardian in New Jersey. It can seem excessive in some circumstances, especially in cases involving emancipated minors, but in general, it is there for the protection of both a minor and his or her parent or legal guardian.

Revocation of Consent

While in certain contexts the rebuttable assumption of competency is significant, in general the presence or absence of capacity decides whether consent is valid or void. As discussed below, however, even if an individual has the legal capacity to consent to a given decision, he or she may also have the right to later revoke that consent in certain circumstances.
Revocation of Consent
If an individual is competent at the time of a given incident, then it is presumed that a party has given his or her consent to that action and has agreed to its risks, as long as that consent is not inherently unreasonable or unforeseeable. This presumption, however, is rebutted by a competent individual’s attempt to later disavow that consenting action. In other words, while that presumption of consent stands until proven otherwise, this presumption is not one that cannot be overturned.
The most common forms of consent revocation involve issues of medical care, which may arise when a patient wishes to avoid or withdraw from treatment. For example, this situation may occur when a medical worker seeks to perform any type of invasive medical procedure. The patient may be asked to agree to the procedure for a physician or other medical professional — but if that consent was invalid, the physician is not legally permitted to perform that procedure, regardless of the injury or illness suffered by the patient.
However, in many cases, an informed and voluntary consent is valid only for a certain period of time, and may be revoked at any time. Thus, if a patient who has consented to an invasive procedure wishes to later revoke that consent, he or she has the legal right to disallow the procedure before it happens. That is , an individual’s competence is not limited to whether he or she understands the nature of a given activity at the time it is performed; a competent individual may also anticipate an activity in the future and choose to refuse consent for it.
In the case of informed consent for medical treatment, however, the doctor is under no obligation to pursue treatment that the patient has revoked his or her consent for, particularly if doing so would be against the doctor’s better professional judgment (e.g. the procedure is dangerous or unnecessary). If the doctor is acting in a reasonable manner, he or she is not liable for refusing to perform a procedure when a patient has later changed his or her mind about consenting to that procedure. On the other hand, if the doctor persists in performing a procedure that a patient has expressly revoked consent for, the doctor may be engaging in battery or medical malpractice.

1. Competency

Competency is typically assessed at the time an action is taken, and is therefore presumed to be present unless contradicted by evidence to the contrary. For example, even a minor may give legally binding consent to an action, regardless of whether or not the minor is served later. In other words, even if an individual is adjudged incompetent after the fact, consent at the time of the action remains valid; conversely, consent granted after an action or activity is not assumed to have been valid during the activity itself.
Even if a minor does not possess the full legal capacity to consent to an action or activity, a parent may be able to consent on the minor’s behalf in order to render the contract valid.

Consent to Medical Procedures

Healthcare consent in New Jersey is generally governed as it would be outside of a healthcare context, although there are some differences. For instance, minors, or children under the age of 18 years, generally do not have the capacity to give consent. The primary exception to this rule is that a minor’s consent may be effective if it is in relation to a medical procedure to be performed on or for the minor, and the consent is effective if given by: (a) If a minor has no parent or legal guardian in the state, the minor may consent to receive outpatient or inpatient medical or surgical care for substance use disorder or a communicable or sexually transmitted disease.
In another context, whether consent can be effective is governed by common law principles. In New Jersey, it is possible for an individual to consent to negligence on the part of another person. However, consent cannot be given for an act which deals with public policy, such as the violent assault of another person. Consent permits the defendant to claim that the plaintiff is partially responsible for his own injuries due to his own failure to exercise reasonable care, and damages against the defendant are reduced according to the plaintiff’s percentage of responsibility.
A person’s power to consent on behalf of another is legally limited to those circumstances specifically enumerated in the statute, but extends to all medical and surgical procedures that the surrogate believes are in the patient’s best interest. N.J.S.A. 26:2H-4.4. A healthcare provider furnishes free of charge a "declaration to physicians" form to all persons admitted to a healthcare facility to record their wishes in advance for medical care. N.J.S.A. 26:2H-79. This law was enacted because the state recognized the fundamental right of a competent adult to make self-determination decisions regarding medical care, treatment, and procedures, and requires that such rights be respected by healthcare facilities and insured by the legal validity of a written advance directive as to medical care.
Patients have certain rights under the New Jersey Patient Bill of Rights. Specifically, the law provides that a patient has: (1) the right to receive from a physician, physician’s designee, or a designee of a health care facility, information about services available at the health care facility; (2) the right to be treated with courtesy, consideration for privacy, and with respect. The patient has the right to make decisions concerning the services provided and to accept or refuse treatment; (3) the right to know the identity and professional status of individuals providing health care services and to obtain information concerning diagnosis and prognosis; and (4) the right to be informed, at the time of admission into a health care facility, of the above-mentioned rights as well as his/her rights concerning advance directives (living will, durable power of attorney for health care, or similar document concerning health care decisions).

Understanding Consent in Digital Contexts

For New Jerseyans, the digital world is littered with new ways to give consent.
For example, their social media accounts are generally considered "strictly public," meaning they can be viewed by anyone. Thus, social media users implicitly consent to the publication of their posts by others, unless the post is password-protected in some way.
But the extent of that consent varies. For instance, someone who posts a photo of their child in a park and tags that place in the post generally should not assume the photo can be used freely by others. This is especially true if the identity of the child is part of the post or the post was shared with a geotag identifying their precise location.
Regardless, "those who post material online put themselves at risk of liability for the acts of others," according to Rutgers Law Professor Michael I. Krauss. That’s particularly important to remember because law enforcement can demand consent to access a person’s data, but what that actually means can and does vary. In U.S. v. Davis, the FBI concluded that sender and recipient consent to share an email or text means that the government can force providers to turn over all emails and text messages to them.
Krauss continues, "The person who engages in online interactions ‘has made a decision to place a portion of his life online’…[and] in so doing he has implicitly agreed that those who browse that part of his life are entitled to share certain data with authorities investigating criminal activity."
That logic is not always supported by courts, however. In 2015, the Supreme Court ruled in Riley v. California that searching an arrestee’s smart phone requires a warrant, rejecting that the defendant had consented to such a search by virtue of his arrest. Another battle is likely to play out in United States v. Graham, where a lower court approved an FBI request to conduct "real-time tracking" of Graham’s phone as part of a robbery investigation, but the defendant is appealing on the basis that cell phone location data is protected Fourth Amendment territory, even when it’s obtained from a third party.
In a related case, In re Search Warrant for [Redacted]@gmail.com, the Second Circuit rejected that a Gmail user consented to the giving Google broad authority to comply with a search warrant. They believed instead that the terms of service gave Google "the unfettered power to search through any nonencrypted Gmail account and turn over the contents of that account to law enforcement under the terms of service…"
That language is similar to that challenged in In re Search Warrant for [Redacted]@gmail.com, a federal case resolved in April 2015 after Google successfully moved to block an FBI demand for data on a Gmail user.
Beginning with In re Search of Information Associated with [Redacted]@gmail.com, the Second Circuit ruled that the user did not consent to the action demanded by the government when the agreement merely grants Gmail the "broad right to process content and information associated with Google accounts."
As we’ve explored in our broader analysis of state consent laws in August, users do not always have actual notice (and thus the opportunity to consent) to the uses of their personal information or data. Some states like Alaska, Arizona, Arkansas, California, and Florida explicitly require "opt-in" consent for the use of "personally identifiable information" (PII) so that "users must positively respond to give their permission." The PII at issue can include demographic information (age, gender, etc.), contact information (including geolocation data), and more.
Equally as important, different states have different data breach notification requirements, but nearly all are beginning to include email and passwords as information requiring notification of a data breach.
Privacy and cyber issues are technically outside of the scope of media law, but a responsible attorney must understand the threat and impact of digital privacy on their client. Are their communications secure? What about their data in storage? Does their insurance policy have adequate coverage?
Far from irrelevant, digital privacy issues are becoming an increasingly pressing concern for the media law attorney who is able to stay abreast of the changing legal and technological landscape.

Changes and Updates to New Jersey Consent Laws

As one can imagine, changes to age of consent laws or other matters related to consent are rather uncommon in New Jersey. These laws are used in serious criminal matters and any change can have a drastic impact on residents, so any updates are limited and highly scrutinized. We have recently seen, however, a change in NJ consent law regarding how minors under the age of 18 are viewed in connection with sexually explicit material. In 2021, this change went into effect and made it a crime for a minor to post or transmit an image or video with them engaged in sexual intercourse or deviant sexual conduct with another minor.
Generally, this is a third-degree crime, except under certain circumstances. If both minors engage in the prohibited conduct in the presence of one another or jointly, then it is a disorderly persons offense. The same is true if the material (image or video) is possessed solely by one of the minors. As such, any material that a minor has on their computer, laptop, tablet, or smartphone and is the sole owner of is prohibited in the state of New Jersey and can result in serious legal and criminal penalties, even if both minors consented to the sexual conduct. These laws are not intended to limit the sexual relationships of minors but, instead, to protect them and their future. When a minor posts or transmits sexual material of any kind, even if it is of them consenting to such conduct, they expose themselves to far more risk than the legal consequences. They expose themselves to the risk of some of their peers seeing that material when it is shared. They expose themselves to the notoriety that comes from having such materials associated with them while they are in high school. This notoriety can follow a person into their collegiate years, their work life, or even their retirement years. None of the aforementioned factors are intended to scare minors. New Jersey minors should be free to engage in sexual conduct with other minors as they legally see fit. They simply need to be aware of the legal ramifications in an effort to consider whether those ramifications are worth it to them. It is not illegal for minors to engage in sexual conduct with one another. Minors, however, should obtain an attorney with experience in NJ consent laws and sex crimes who can explain how a conviction can hurt them forever.

Conclusion of Consent Law in New Jersey

In conclusion, it is important for readers to understand the nuances of NJ consent laws and how they may apply to their unique situations . If you have any further questions or concerns, or if you believe that you need legal assistance, I encourage you to reach out to an experienced NJ criminal defense attorney. They will be able to provide you with specific guidance on consent requirements and the penalties for violating those requirements.