State v. DiPetrillo

Jane was a 19-year-old employee in 30-year-old Craig DiPetrillo’s (defendant) business. One night, DiPetrillo asked Jane to work late. DiPetrillo called Jane to his desk, grabbed her by the waist, and pulled her onto his lap. DiPetrillo began kissing Jane, and initially, Jane kissed him back but subsequently protested and told DiPetrillo, “we can’t do this.” DiPetrillo then physically moved Jane from his lap to the seat of his chair and put his hands on the chair arms and continued to kiss Jane while standing over her. DiPetrillo put his hand under Jane’s shirt and touched her breast. At trial, Jane testified that she was in fear and tried to avoid kissing DiPetrillo by moving her head away and repeatedly telling him to stop. Jane pushed DiPetrillo’s hand away from her breast, but DiPetrillo instead pulled down Jane’s pants and underwear and digitally penetrated her vagina with one of his fingers. Jane again told DiPetrillo to stop, and she stood up, got dressed, and was eventually able to walk away. DiPetrillo was charged with first-degree sexual assault, which required proof of sexual penetration by force or coercion, and second-degree sexual assault, which required proof of sexual contact by force or coercion. After a bench trial, DiPetrillo was found guilty of both counts. The trial judge held that all of the ingredients were present to find that DiPetrillo coerced Jane by both the application of physical force and the imposition of psychological pressure. DiPetrillo appealed, arguing that the trial judge conflated the force-or-coercion standard with the court’s holding in State v. Burke. In Burke, a victim was assaulted by a uniformed police officer, and the court found that although the officer did not verbally threaten the victim with violence, the victim was nonetheless coerced by threat of force or violence because the officer was armed and in a position of authority. DiPetrillo argued that the Burke analysis of psychological pressure on a vulnerable victim did not apply in his case.