129 N.J. 422 (1992)
On May 21, 1990, fifteen-year-old C.G. lived in a three-bedroom townhome with her mother, three siblings, and several other people including seventeen-year-old M.T.S. and his girlfriend. A total of ten people resided there.1
M.T.S. had been staying at the home temporarily with the mother's permission. He slept on a downstairs couch while C.G. had her own upstairs room.2 Earlier that day, M.T.S. told C.G. three or four times that he was going to make a surprise visit to her bedroom. She viewed these comments as jokes because he frequently teased her. She had previously rejected his advances.3
At 11:30 p.m., C.G. went to bed after watching television with her mother, M.T.S., and his girlfriend.4 Around 1:30 a.m. on May 22, she awoke to use the bathroom. She saw M.T.S. standing in her doorway. She used the bathroom, returned to bed, and fell into a heavy sleep.5 She later awoke to find M.T.S. on top of her with her shorts and underpants removed and his penis inside her vagina. She immediately slapped him once in the face, told him to get off and leave, and he complied within one minute.6
According to M.T.S., he and C.G. had been good friends. Their relationship had progressed to kissing and necking in the preceding days. She had encouraged him to visit her room. They began kissing after she returned from the bathroom, moved to the bed, undressed each other, and engaged in intercourse. She pushed him off after three or four thrusts and told him to stop.7
After the encounter, C.G. fell asleep crying. At about 7:00 a.m., she told her mother. Her mother removed M.T.S.'s clothes from the house while he was out. C.G. and her mother then filed a police complaint.8
On May 23, 1990, M.T.S. was charged with second-degree sexual assault contrary to N.J.S.A. 2C:14-2c(1) along with unrelated theft, escape, and trespass charges.9 After a two-day trial limited to the sexual assault charge, the trial court adjudicated M.T.S. delinquent. The court found that C.G. had consented to kissing and heavy petting but not to the penetration itself.10 The Appellate Division reversed the delinquency adjudication on the sexual assault charge.11 The Supreme Court of New Jersey granted the State's petition for certification.12
Whether the element of physical force in the sexual assault statute is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result?13
Under N.J.S.A. 2C:14-2c(1), an actor is guilty of sexual assault if he commits an act of sexual penetration with another person using physical force or coercion, but the victim does not sustain severe personal injury.14 The term physical force is satisfied if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.15 Permission must be affirmative and freely given. It may be inferred from acts or statements reasonably viewed in light of surrounding circumstances.16 Physical force in excess of that inherent in the act of sexual penetration is not required.17
Yes. The established facts demonstrate that M.T.S. performed an act of sexual penetration upon C.G. without her affirmative and freely-given permission to that specific act.18 The trial court found that C.G. had not given affirmative and freely-given permission for the penetration.19 Therefore, the physical force element is satisfied under the statute without any requirement of force extrinsic to the act of penetration itself.
The element of physical force in the sexual assault statute is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.20