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New Jersey Criminal Defenses of Intoxication, Duress, and Consent

When you have been charged with a crime, identifying your best defense or defenses should be your top priority. While many of us are familiar with the term “self-defense” most people aren’t familiar with all the defense to criminal offenses that may be available to them. For example, in certain situations intoxication, duress, or even consent may constitute valid legal defenses. In New Jersey, these defenses are established by statute:

2C:2-8. Intoxication

a. Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it negatives an element of the offense.

b. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

c. Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4.

d. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.

e. Definitions. In this section unless a different meaning plainly is required:

  1. “Intoxication” means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
  2. “Self-induced intoxication” means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
  3. “Pathological intoxication” means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.

2C:2-9. Duress

a. Subject to subsection b. of this section, it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

b. The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability for the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.

c. It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman, acting in the presence of her husband, is coerced is abolished.

2C:2-10. Consent

a. In general. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

b. Consent to bodily harm. When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:

  1. The bodily harm consented to or threatened by the conduct consented to is not serious; or
  2. The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
  3. The consent establishes a justification for the conduct under chapter 3 of the code.

c. Ineffective consent. Unless otherwise provided by the code or by the law defining the offense, assent does not constitute consent if:

  1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
  2. It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
  3. It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

Establishing your legal defense is likely to play a large role in whether you face significant criminal penalty or are acquitted. However, it’s important to understand that claiming a defense and proving a valid defense are two different matters. While intoxication, duress, and consent can be legal defenses, don’t assume that they will be available to you, and further, that you will be able to successfully prove them. Talk to a defense lawyer that is familiar with the laws of your state.

It’s important to keep in mind that the law is constantly changing. Therefore, statutes listed here may not be operable due to unmet conditions or may have expired. It’s also possible that they have been ruled inoperable by a court, or have otherwise become inoperable. Therefore, you should not rely solely on the information presented.

If you are facing criminal investigation or charges, in order to protect your rights, you should contact a criminal defense lawyer as soon as is possible.

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