https://www.nytimes.com/2019/07/02/nyreg...pgtype=HomepageThe 16-year-old girl was visibly intoxicated, her speech slurred, when a drunk 16-year-old boy sexually assaulted her in a dark basement during an alcohol-fueled pajama party in New Jersey, prosecutors said.
The boy filmed himself penetrating her from behind, her torso exposed, her head hanging down, prosecutors said. He later shared the cellphone video among friends, investigators said, and sent a text that said, “When your first time having sex was rape.”
But a family court judge said it wasn’t rape. Instead, he wondered aloud if it was sexual assault, defining rape as something reserved for an attack at gunpoint by strangers.
He also said the young man came from a good family, attended an excellent school, had terrific grades and was an Eagle scout. Prosecutors, the judge said, should have explained to the girl and her family that pressing charges would destroy the boy’s life.
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So he denied prosecutors’ motion to try the 16-year-old as an adult. “He is clearly a candidate for not just college but probably for a good college,” Judge James Troiano of Superior Court said last year in a two-hour decision while sitting in Monmouth County.
Now the judge has been sharply rebuked by an appeals court in a scathing 14-page ruling that warned the judge against showing bias toward privileged teenagers.
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In doing so, the appeals court cleared the way for the case to be moved from family court to a grand jury, where the teenager, identified only as G.M.C. in court documents, will be treated as an adult. New Jersey law allows juveniles as young as 15 to be tried as adults when accused of serious crimes, and the grand jury will weigh whether to indict him on the sexual assault accusation.
In recent years, judges across the country have come under fire for the way they have handled sexual abuse cases. One of the most notorious was in 2016, when a judge in California sentenced a Stanford University student to six months in jail after he was found guilty of sexually assaulting an unconscious woman. After an intense public backlash, California voters recalled the judge.
Judge Troiano, who is roughly 70, was one of two family court judges whom appeals courts in New Jersey have criticized in recent weeks over relatively similar issues.
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In the other case, the appellate division reversed another judge’s decision not to try a 16-year-old boy as an adult after he was accused of sexually assaulting a 12-year-old girl in 2017.
The second family court judge, Marcia Silva, sitting in Middlesex County, denied a motion to try the teenager as an adult and said that “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”
The appellate judges also upbraided Judge Silva, overturning her decision and noting that the teenager could be culpable because the 12-year-old was not old enough to provide consent in the first place.
The judge in Monmouth County, Mr. Troiano, was scolded by the appellate court, according to the panel’s decision. “That the juvenile came from a good family and had good test scores we assume would not condemn the juveniles who do not come from good families and do not have good test scores from withstanding waiver application,” the panel wrote in its decision.
A spokeswoman for the administrative office of the courts said the judges had no comment on the case. She said Mr. Troiano, a veteran judge who retired several years ago, was asked to occasionally fill vacancies on the bench.
Family court cases are typically closed to the public, but the judges’ comments surfaced in June when the appeals court decisions were made public, joining a series of contentious sexual assault cases that have ignited outrage over a legal system that advocates for victims say is warped by bias and privilege.
In the first case, heard by Judge Troiano, it is unclear from court documents when and specifically where in New Jersey the incident involving the two 16-year-olds took place.
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But prosecutors said it occurred during a party packed with 30 other teenagers. The case was highlighted by a New Jersey radio station, 101.5.
The victim was identified only as Mary, an alias to protect her identity.
Before the episode, prosecutors said, both teenagers walked into a darkened area of the basement and Mary stumbled as she walked.
“While on the sofa, a group of boys sprayed Febreze on Mary’s bottom and slapped it with such force that the following day she had hand marks on her buttocks,” according to court documents.
After the assault, prosecutors said, G.M.C. left the room, but some of his concerned friends checked on her. Mary was found on the floor vomiting, and she was driven home by a friend’s mother.
When Mary woke up the following morning, she was confused about her torn clothing and bruises on her body, and told her mother she feared “sexual things had happened at the party” without her consent, court documents said.
Over the next several months, she learned that G.M.C. had shared the video among friends, but, when confronted, he denied recording the encounter and said the friends were lying, according to court documents.
Eventually, Mary learned that the boy had continued to share the video, prompting her mother to contact the authorities and ultimately pursue criminal charges in 2017.
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In September 2017, the Monmouth County prosecutor’s office recommended that the case be tried in adult criminal court in part because the boy’s actions were “sophisticated and predatory.”
“At the time he led Mary into the basement gym, she was visibly intoxicated and unable to walk without stumbling,” the prosecutor wrote. “For the duration of the assault, the lights in the gym remained off and the door was barred by a foosball table. Filming a cellphone video while committing the assault was a deliberate act of debasement.”
The prosecutor said that the boy lied to Mary in the following months, while simultaneously sharing the video.
“This was neither a childish misinterpretation of the situation, nor was it a misunderstanding,” the prosecutor wrote. “G.M.C.’s behavior was calculated and cruel.”
In an interview, Christopher J. Gramiccioni, the county prosecutor said, “This is conduct that should be punished in adult court.”
“We subscribe to the idea that the juvenile system is supposed to be rehabilitative,” he said. “But when you’re dealing with charges as serious as these, it’s a whole different ball of wax.”
Mitchell J. Ansell, a lawyer for the teenage boy, did not return requests for comment.
Mr. Gramiccioni said New Jersey has a progressive juvenile system: Juvenile cases are not shown to juries, juvenile records are kept from public view and sentences are typically more lenient than when a person is tried as an adult.
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A recent law made it illegal to try defendants younger than 15 as adults.
On July 30, 2018, Judge Troiano denied the waiver to try the teenager as an adult, arguing that prosecutors had abused their discretion.
Judge Troiano said there was a “distinction” between “a sexual assault and a rape.”
He said “the traditional case of rape” generally involved two or more males using a gun or weapon to corner a victim into an abandoned house, shed or shack, “and just simply taking advantage of the person as well as beating the person, threatening the person.”
It was under those egregious circumstances, he said, that the state would try a juvenile in adult court.
He delved into the facts of the case, questioning “whether or not this young lady was intoxicated to the point that she didn’t understand what was going on.”
He said the boy’s actions were not sophisticated or predatory, and dismissed G.M.C.’s text messages as “just a 16-year-old kid saying stupid crap to his friends.”
“This young man comes from a good family who put him into an excellent school where he was doing extremely well,” the judge said. “His scores for college entry were very high.”
The appellate decision criticized the judge, writing that rather than focusing on whether prosecutors met the necessary standards for a waiver, “the judge decided the case for himself.”
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The judge overstepped in deconstructing the circumstances of the case, making his own assessment of the boy’s culpability and considering the defendant’s prior good character, the appellate panel said.
“His consideration of these elements, however, sounded as if he had conducted a bench trial on the charges rather than neutrally reviewed the State’s application,” the panel said.
In 2004, Judge Troiano imposed a gag order to prohibit people in a courtroom from discussing the high-profile case of two Montclair High School football players accused of sexually assaulting a schoolmate. The charges were eventually dropped.
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