Thursday, August 17, 2017

AGGRAVATED SEXUAL ASSAULT after March 17, 2012) model jury charge

AGGRAVATED SEXUAL ASSAULT after March 17, 2012) model jury charge


AGGRAVATED SEXUAL ASSAULT

(MENTALLY INCAPACITATED)

(N.J.S.A.2C:14-2a(7)) (Offenses arising after March 17, 2012)model jury charge

Count of the indictment charges the defendant with aggravated sexual assault.

[READ COUNT OF INDICTMENT]

That section of our statutes provides in pertinent part:

An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person whom the actor knew or should have known was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:

1. That the defendant committed an act of sexual penetration with another person.

2. That defendant acted knowingly.

3. That at the time of the penetration the victim was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent.
  1. That defendant knew or should have known that at the time of the penetration the victim was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent.
The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual penetration with (name of victim).

According to the law,[ choose appropriate] vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina, either by the defendant or by another person upon the defendants instruction, constitute(s) sexual penetration. Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.

1. P.L. 2011, c. 232, effective March 17, 2012, eliminated the term mentally defective.AGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED) N.J.S.A. 2C:14-2a(7)(Offenses arising after March 17, 2012)

2. State v. J.A., 337N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld the charge given by the trial court in that case which included the following language which can be used if the circumstances of the specific case are appropriate: This means that if you find from all of the evidence presented beyond a reasonable doubt that there was [penile] penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law.

4. State in the Interest of S.M., 284N.J. Super. 611, 616-19 (App. Div. 1995). Penetration is not necessary for this act.5State v. Gallagher, 286N.J. Super. 1, 13 (App. Div. 1995),certif. denied, 146N.J. 569 (1996).

[Choose the appropriate definition(s)]

The definition of vaginal intercourse is the penetration of the vagina, or[where appropriate]of the space between the labia majora or outer lips of the vulva.

The definition of cunnilingus is oral contact with the female sex organ.

The definition of fellatio is oral contact with the male sexual organ.

The definition of anal intercourse is penetration of any depth into the anus.

The second element that the State must prove beyond a reasonable doubt is that defendant acted knowingly. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from defendants conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of his/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The third element that the State must prove beyond a reasonable doubt is that at the time of the penetration,(name of victim)was[choose appropriate]physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent.

AGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED) N.J.S.A. 2C:14-2a(7)(Offenses arising after March 17, 2012)

6. N.J.S.A. 2C:14-1g.

7. N.J.S.A. 2C:14-1h.

8. State v. Olivio, 123N.J. 550, 563-64 (1991).

9. N.J.S.A. 2C:14-1i.

Physically helpless means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act.

Mentally incapable means that condition in which a person has a mental disease or defect which renders that person temporarily or permanently incapable of understanding the nature of (his/her) conduct, including but not limited to, being incapable of proving consent.

A person is mentally incapable if, at the time of the sexual activity, the mental disease or defect rendered (him/her) unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another. It includes both the capacity to understand and the capacity to consent with respect to personal sexual activity. The capacity to consent involves knowing that ones body is private and is not subject to the physical invasions of another and that one has the right and ability to refuse to engage in sexual activity. The capacity to understand, which is part of the idea of the capacity to consent, involves the knowledge that the conduct is distinctively sexual. Here, that knowledge extends only to the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts may be morally right or wrong and have probable serious consequences, such as pregnancy and birth, disease, infirmities, adverse psychological or emotional disorders.

Mentally incapacitated means that condition in which a person is rendered temporarily incapable of understanding or controlling (his/her) conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without (his/her) prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling (his/her) conduct.

The fourth element that the State must prove beyond a reasonable doubt is that defendant knew or should have known that the(name of victim)was[choose appropriate] physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of (his/her) conduct, including, but not limited to, being incapable of providing consent.

If you find that the State has proven beyond a reasonable doubt each of these four elements, then you must find the defendant guilty of the crime of aggravated sexual assault. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then
you must find the defendant not guilty of aggravated sexual assault.

AGGRAVATED SEXUAL ASSAULT (MENTALLY INCAPACITATED) N.J.S.A. 2C:14-2a(7)(Offenses arising after March 17, 2012)

(Continue to lesser included offenses where required)

http://www.njlaws.com/agsex5.html?id=5408&a=

AGGRAVATED SEXUAL ASSAULT - PHYSICAL model jury charge

AGGRAVATED SEXUAL ASSAULT - PHYSICAL model jury charge


AGGRAVATED SEXUAL ASSAULT - PHYSICAL FORCE OR COERCION WITH SEVERE PERSONAL INJURY

(N.J.S.A.2C:14-2a(6))model jury charge

Count of the indictment charges the defendant with aggravated sexual assault.

[READ COUNT OF INDICTMENT]

That section of our statutes provides in pertinent part:

An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person and the actor uses physical force or coercion and severe personal injury is sustained by the victim.

In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:

1. That the defendant committed an act of sexual penetration with another person.

2. That the defendant acted knowingly

3. That the defendant used physical force or coercion.

4. That the victim sustained severe personal injury.

The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual penetration with(name of victim).

According to the law,[choose appropriate]vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina, either by the defendant or by another person upon the defendants instruction, constitute(s) sexual penetration. Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.

[Choose the appropriate definition(s)]

The definition of vaginal intercourse is the penetration of the vagina, or[where appropriate]of the space between the labia majora or outer lips of the vulva.1

1. State v. J.A., 337N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld the charge given by the trial court in that case which included the following language which can be used if the circumstances of the specific case are appropriate: This means that if you find from all of the evidence presented beyond a reasonable doubt that there was [penile] penetration to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the law.

AGGRAVATED SEXUAL ASSAULT PHYSICAL FORCE OR COERCION WITH SEVERE PERSONAL INJURY (N.J.S.A. 2C:14-2a(6)

2. State v. Fraction, 206N.J. Super. 532, 535-36 (App. Div. 1985),certif. denied, 104N.J. 434 (1986). Penetration is not necessary for this act.

3. State in the Interest of S.M., 284N.J. Super. 611, 616-19 (App. Div. 1995). Penetration is not necessary for this act.

4. State v. Gallagher, 286N.J. Super. 1, 13 (App. Div. 1995),certif. denied, 146N.J. 569 (1996).

The definition of cunnilingus is oral contact with the female sex organ.
The definition of fellatio is oral contact with the male sexual organ.


The definition of anal intercourse is penetration of any depth into the anus.

The second element that the State must prove beyond a reasonable doubt is that defendant acted knowingly. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from defendants conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of his/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The third element that the State must prove beyond a reasonable doubt is that defendant used physical force or coercion.

Physical force is defined as the commission of the act of sexual penetration without the victims freely and affirmatively given permission to the specific act of penetration alleged to have occurred. You must decide whether the defendants alleged act of penetration was undertaken in circumstances that led the defendant reasonably to believe that the victim had freely given affirmative permission to the specific act of sexual penetration. Simply put, affirmatively given permission means the victim did or said something which would lead a reasonable person to believe [he/she] was agreeing to engage in the act of sexual penetration, and freely given permission means the victim agreed of [his/her] own free will to engage in the act of sexual penetration. Freely and affirmatively given permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person that affirmative and freely given permission for the specific act of sexual penetration had been given.
Persons need not, of course, expressly announce their consent to engage in an act of sexual intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act. 

AGGRAVATED SEXUAL ASSAULT PHYSICAL FORCE OR COERCION WITH SEVERE PERSONAL INJURY (N.J.S.A. 2C:14-2a(6)

5. State in the Interest of M.T.S., 129N.J. 422, 444-49 (1992).

6. See N.J.S.A.2C:14-1j and 2C:13-5.


Proof that the act of sexual penetration occurred without the victims permission can be based on evidence of conduct or words in light of surrounding circumstances, and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate beyond a reasonable doubt either that the defendant did not actually believe that such permission had been freely given, or that such a belief was unreasonable under all of the circumstances.

In determining the reasonableness of defendants belief that the victim had freely given affirmative permission, you must keep in mind that the law places no burden on the alleged victim to have expressed non-consent or to have denied permission. You should not speculate as to what the alleged victim thought or desired or why [he/she] did not resist or protest. The State is not required to prove that the victim resisted.

To find that the defendant used coercion, you must find that the defendant, with the purpose to unlawfully restrict(name of victim)freedom of action to engage in or refrain from engaging in the act of sexual penetration, threatened to
[Charge applicable language]

(1) inflict bodily injury on anyone or commit any other offense;

(2) accuse anyone of an offense;

AGGRAVATED SEXUAL ASSAULT PHYSICAL FORCE OR COERCION WITH SEVERE PERSONAL INJURY (N.J.S.A. 2C:14-2a(6) 

7. Purpose only applies if coercion is charged.

8. Purpose only applies if coercion is charged.

9. N.J.S.A. 2C:14-1f.

(3) expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his or her credit or business repute;

(4) take or withhold action as an official, or cause an official to take or withhold action;

(5) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(6) perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships.

In other words, to find that the defendant used coercion, you must find that the defendants purpose was to compel(name of victim)to engage in an act of sexual penetration by threatening (him/her).7A person acts purposely with respect to the nature of his/her conduct or the result of that conduct if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances or believes or hopes that they exist. With purpose, designed, with design, or equivalent terms have the same meaning.

Knowledge [and purpose]8is [are] [a] condition[s] of the mind. It [they] cannot be seen. It [they] can only be determined by inferences from defendants conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

The fourth element that the State must prove beyond a reasonable doubt is that the victim sustained severe personal injury. Severe personal injury means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain.

AGGRAVATED SEXUAL ASSAULT PHYSICAL FORCE OR COERCION WITH SEVERE PERSONAL INJURY (N.J.S.A. 2C:14-2a(6)

If you find that the State has proven beyond a reasonable doubt each of these four elements, then you must find the defendant guilty of the crime of aggravated sexual assault. On the other hand, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated sexual assault.

(Continue to lesser included offenses where required.)

http://www.njlaws.com/aggsex3.html?id=5406&a=

AGGRAVATED MANSLAUGHTER (N.J.S.A. 2C:11-4a) model jury charge

AGGRAVATED MANSLAUGHTER (N.J.S.A. 2C:11-4a) model jury charge


AGGRAVATED MANSLAUGHTER

(N.J.S.A. 2C:11-4a) model jury charge

The defendant is charged by indictment with the crime of aggravated manslaughter, and the indictment alleges he/she caused (insert victims name) death on (Date) .

A person is guilty of aggravated manslaughter if he/she recklessly causes the death of another person under circumstances manifesting extreme indifference to human life.

In order for you to find the defendant guilty of aggravated manslaughter, the State is required to prove each of the following elements beyond a reasonable doubt:

(1) that the defendant caused (insert victims name) death, and

(2) that the defendant did so recklessly, and

(3) that the defendant did so under circumstances manifesting extreme indifference to human life.
One element that the State must prove beyond a reasonable doubt is that the defendant acted recklessly.

A person who causes another's death does so recklessly when he/she is aware of and consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of defendants conduct and the circumstances known to defendant, his/her disregard of that risk is a gross deviation from the standard of conduct that a reasonable person would follow in the same situation.

In other words, you must find that defendant was aware of and consciously disregarded the risk of causing death. If you find that defendant was aware of and disregarded the risk of causing death, you must determine whether the risk that he/she disregarded was substantial and unjustifiable. In doing so, you must consider the nature and purpose of defendants conduct, and the circumstances known to defendant, and you must determine whether, in light of those factors, defendants disregard of that risk was a gross deviation from the conduct a reasonable person would have observed in defendants situation.

N.J.S.A. 2C:2-2(3). AGGRAVATED MANSLAUGHTER (N.J.S.A. 2C:11-4a) Page 2 of 4

2 This expanded explanation of recklessness is adapted from the following portion of the Code Commentary:

The Code requires, however, that the risk thus consciously disregarded by the actor be substantial and unjustifiable; even substantial risks may be created without recklessness when the actor seeks to serve a proper purpose. Accordingly, to aid the ultimate determination, the Code points expressly to the factors to be weighed in judgment: the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct and the circumstances known to him in acting.

Some principle must be articulated, however, to indicate what final judgment is demanded after everything is weighed. There is no way to state this value judgment that does not beg the question in the last analysis. The point is that the jury must evaluate the conduct and determine whether it should be condemned. The Code, therefore, proposes that this difficulty be resolved by asking the jury whether the defendants conduct involved a gross deviation from the standard of conduct that a reasonable person would observe. This seems to us to be the most appropriate way to put the issue to a jury. (2 Final Report of the New Jersey Criminal Law Revision Commission, Commentary (1971) at 42.)

3 In State v. Concepcion, 111 N.J. 373, 380-81 (1988), the Supreme Court reversed the defendants conviction of reckless manslaughter because the trial judge had selectively summarized only one aspect of the critical events and had failed to explain that the jury must make a preliminary finding resolving contrasting factual accounts of events.

4 In State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div. 1984), the court found that the difference between aggravated and reckless manslaughter is the degree of risk created by defendants conduct. If, under all the surrounding circumstances, the defendants conduct creates a probability, as opposed to a mere possibility of death, then the circumstances manifest extreme indifference to human life and the offense is aggravated manslaughter. Id. at 365-65. The Supreme Court endorsed Curtis in State v. Breakiron, 108 N.J. 591, 605 (1987).

(Summarize, if helpful, all of the evidence relevant to recklessness, including any contrasting accounts of events by the defense and the State.)

Another element that the State must prove beyond a reasonable doubt is that the defendant acted under circumstances manifesting extreme indifference to human life. The phrase under circumstances manifesting extreme indifference to human life does not focus on defendants state of mind, but rather on the circumstances under which you find he/she acted. If, in light of all the evidence, you find that defendants conduct resulted in a probability as opposed to a mere possibility of death, then you may find that he/she acted under circumstances manifesting extreme indifference to human life.4 (On the other hand, if you find that his/her conduct resulted in only a possibility of death, then you must acquit him/her of aggravated manslaughter and consider the crime of reckless manslaughter, which I will explain to you shortly.)

The final element that the State must prove beyond a reasonable doubt is that the defendant caused (insert victims name) death. MANSLAUGHTER (N.J.S.A. 2C:11-4a)

5 To be used if reckless manslaughter is being charged in the case.

N.J.S.A. 2C:2-3(a)(1).

State v. Concepcion, 111 N.J. 373, 377 (1988); N.J.S.A. 2C:2-3c.

State v. Martin, 119 N.J. at 33.

(If causal relationship between conduct and result is not an issue, charge the following:)

You must find that (insert victims name) would not have died but for defendants conduct.

(If causal relationship between conduct and result is an issue, charge the
fong:)

Causation has a special meaning under the law. To establish causation
prove two elements, each beyond a reasonable doubt:

First, that but for the defendants conduct, (insert victims name) would not have died. Second, (insert victims name) death must have been within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of the defendants conduct, and must also not be too remote, too accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendants liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that (insert victims name) death was not so unexpected
be unjust to find the defendant guilty of aggravated manslaughter. 

[NOTE: in cases where Causation - Removal of Life should be instructed as follows: AGGRAVATED MANSLAUGHTER (N.J.S.A. 2C:11-4a)  from life support and then expired, unless there entrusting factual theories of causation, each version should be summarized through indifference to human life, then your verdict must be guilty of aggravated manslaughter and go on to consider whether the defendant should be convicted of reckless manslaughter).

State v. Pelham, 176 N.J. 448, 455-456 and n. 2 (2003).

10 Pelham, 176 N.J. at 467.

11 State v. Martin, 119 N.J. at 18.

12 To be used if reckless manslaughter is being charged in the case.

You have heard testimony that on [date], (insert victims name) was taken off life support and that he/she died at some point after this was done. Should you find beyond a reasonable doubt that (insert victims name) died from medical complications that resulted from injuries caused by defendants actions, the removal of life support, in this case (method of removal), is not an intervening cause that relieves defendant of any criminal liability for those actions.9 That is, if defendants actions set in motion (insert victims name) need for life support, without which death would result naturally, then the causal link between defendants action and the death of (insert victims name) was not broken by an unforeseen, extraordinary act when (insert victims name) was removed
was an intervening volitional act of another. ]

(Where the defendant and State offer consideration for the jury)

[CHARGE IN ALL CASES] If after consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant recklessly caused (insert victims name) death under circumstances manifesting extreme indifference to human life. If, however, after consideration of all the evidence you are not convinced beyond a reasonable doubt that the defendant recklessly caused (insert victims name) death under circumstances manifesting extreme indifference to human life, you must find the defendant not guilty of aggravated manslaughter. 

http://www.njlaws.com/aggmans.html?id=5397&a=

AGGRAVATED CRIMINAL SEXUAN.J.S.A. 2C:14-3a jury charge

AGGRAVATED CRIMINAL SEXUAN.J.S.A. 2C:14-3a jury charge


AGGRAVATED CRIMINAL SEXUAL CONTACT

N.J.S.A.2C:14-3a [2C:14-2a(5)]model jury charge

[READ COUNT OF INDICTMENT]

The statute on which this charge is based provides that an actor is guilty of aggravated criminal sexual contact if, aided and abetted by one or more other persons, he commits an act of sexual contact with another person, using physical force or coercion.
In order to convict defendant of this charge, the State must prove each of the following elements beyond a reasonable doubt:

1. That defendant purposely committed an act of sexual contact with
another person;

OR

1. That defendant purposely committed an act of sexual contact by
touching himself/herself and the touching was in the view of
(name of victim)who defendant knew was present;

2. That defendant was aided or abetted by one or more other persons in the commission of the act of sexual contact, and

3. That defendant used physical force or coercion in committing the act of sexual contact.

The first element that the State must prove beyond a reasonable doubt is that defendant purposely committed an act of sexual contact with(name of victim).

Sexual contact means an intentional touching by(name of victim)or by the defendant, either directly or through clothing, of(name of victims)or defendants intimate parts for the purpose of degrading or humiliating(name of victim)or sexually arousing or gratifying defendant.
Intimate parts means[CHOOSE APPROPRIATE]sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person. Here the State alleges that defendant committed an act of sexual contact by(describe conduct alleged).

To find that defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional and that it was done with the purposeAGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(5)
of degrading or humiliating(name of victim)or sexually arousing or gratifying the defendant.
Intentional means purposeful. A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to the attendant circumstances if he/she is aware of the existence of such circumstances or believes or hopes that they exist.

[WHEN DEFENDANT IS CHARGED WITH TOUCHING HIMSELF/HERSELF, ADD THE FOLLOWING: The State must prove beyond a reasonable doubt that the touching was in view of the victim whom the defendant knew to be present.1The State is not required to prove that(name of victim)actually observed or witnessed the alleged sexual contact. Rather, the State must prove that the alleged sexual contact occurred in the view of(name of victim). Field of vision is not limited to the visual direction in which the alleged victim is focused upon at the particular time when the alleged sexual contact is said to have occurred. Field of vision includes the areas that(name of victim)was capable of viewing.2The State must prove beyond a reasonable doubt that(name of victim)was present.

A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a result. Knowing, with knowledge, or equivalent terms have the same meaning.]

Purpose [and knowledge] is/are [a] condition[s] of the mind. [It] [They] cannot be seen. Often, [it] [they] can only be determined by inference from defendants conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/she had a certain state of mind when he/she did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her acts and conduct and from all he/she said and did at the particular time and place and from all surrounding circumstances established by the evidence.

1. State v. Zeidell, 154N.J. 417 (1998).

2. State v. Breitweiser, 373N.J. Super. 271, 276, 286-87 (App. Div. 2004).AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(5)

3. Note that where a defendants sexual contact is with his own intimate parts in view of an adult victim, a conviction on a charge of criminal sexual contact requires proof of physical force or coercion beyond defendants act of touching himself; in the absence of such evidence of force or coercion, defendants conduct may constitute the lesser included offense of lewdness.State v. Lee, 417N.J. Super. 219 (App. Div. 2010),certif. denied,206N.J.64 (2011). In an appropriate case, the court must (1) decide which charge(s) to submit to the jury and (2) tailor its instructions accordingly.
4The definition of physical force in this charge is taken fromState in the Interest of M.T.S., 129N.J.422, 444-449 (1992).

The second element that the State must prove beyond a reasonable doubt is that the defendant was aided or abetted by one or more other persons in the commission of the act of sexual contact.
The word aid means to assist, support or supplement the efforts of another, and the word abet means to encourage, counsel, incite or instigate the commission of the crime. Aiding or abetting does not have to be proved by direct evidence of a formal plan to commit the crime, verbally agreed to by all who are charged or involved. The proof may be circumstantial. Participation and agreement can be established from conduct as well as spoken words.

The third element that the State must prove beyond a reasonable doubt is that the defendant used physical force or coercion in committing the act of sexual contact.3The State is not required to prove that the victim resisted.
The terms physical force and coercion have special meaning under this statute which I will now explain to you.

Physical force is defined as the commission of the act of sexual contact without the victims freely and affirmatively given permission to the specific act of contact alleged to have occurred. You must decide whether the defendants alleged act of contact was undertaken in circumstances that led the defendant reasonably to believe that the victim had freely given affirmative permission to the specific act of sexual contact. Simply put, affirmatively given permission means the victim did or said something which would lead a reasonable person to believe (he/she) was agreeing to engage in the act of sexual contact, and freely given permission means the victim agreed of (his/her) own free will to engage in the act of sexual contact.

Freely and affirmatively given permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person that affirmative and freely given permission for the specific act of sexual contact had been given. Persons need not, of course, expressly announce theirAGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(5)]

5. See N.J.S.A.2C:14-1j and 2C:13-5.
consent to engage in an act of sexual intercourse for there to be affirmative permission. Permission to engage in an act of sexual contact can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

Proof that the act of sexual contact occurred without the victims permission can be based on evidence of conduct or words in light of surrounding circumstances, and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that the defendant did not actually believe that such permission had been freely given, or that such a belief was unreasonable under all of the circumstances. In determining the reasonableness of defendants belief that the victim had freely given affirmative permission, you must keep in mind that the law places no burden on the alleged victim to have expressed non-consent or to have denied permission. You should not speculate as to what the alleged victim thought or desired or why (he/she) did not resist or protest. The State is not required to prove that the victim resisted.

To find that the defendant used coercion, you must find that with the purpose, that is, conscious object, to unlawfully restrict[victims]freedom of action to engage in or refrain from engaging in the act of sexual contact, the defendant threatened to:

[charge applicable language]

(1) inflict bodily injury on anyone or any other offense;

(2) accuse anyone of an offense;

(3) expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his or her credit or business repute;

(4) take or withhold action as an official, or cause an official to take or withhold action;

(5) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; orAGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(5)

(6) perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships.

In other words, to find that the defendant used coercion, you must find that the defendants purpose, that is, conscious object, was to compel[victim]_to engage in an act of sexual contact by threatening (him/her).

[SUMMARIZE FACTUAL ALLEGATIONS OF STATE AND
DEFENSE, IF APPROPRIATE]

If you find that the State has proven every element beyond a reasonable doubt, then you must find the defendant guilty of aggravated criminal sexual contact. If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated criminal sexual contact.

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AGGRAVATED CRIMINAL SEXUAL N.J.S.A. 2C:14-3a jury charge

AGGRAVATED CRIMINAL SEXUAL N.J.S.A. 2C:14-3a jury charge


AGGRAVATED CRIMINAL SEXUAL CONTACT

N.J.S.A.2C:14-3a [2C:14-2a(6)]model jury charge

Count _______ of the indictment charges the defendant with aggravated criminal sexual contact.

[READ COUNT OF INDICTMENT]

The statute on which this charge is based provides that an actor is guilty of aggravated criminal sexual contact if he/she commits an act of sexual contact with another person, using physical force or coercion, and severe personal injury is sustained by the victim.

In order for you to find the defendant guilty of aggravated criminal sexual contact, you must find that the State has proven each of the following three elements beyond a reasonable doubt:

1. That the defendant committed an act of sexual contact with[insert name of victim],

2. That the defendant used physical force or coercion, and

3. That as a result of the defendants conduct, the victim sustained severe personal injury.

For a person to be found guilty of aggravated criminal sexual contact, the State is not required to prove that the victim resisted.

The first element the State is required to prove is that the defendant committed an act of sexual contact with(name of victim)as charged in the indictment. Under the law, sexual contact means an intentional touching by the victim or the defendant, either directly or through clothing, of the victims or defendants intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant. To constitute criminal conduct under this statute, sexual contact of the defendant with himself/herself must be in view of the victim whom the defendant knows to be present, and must be done with the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant.

Intimate parts means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.

For you to find that the defendant committed an act of criminal sexual contact, you must find beyond a reasonable doubt both that the touching was intentional, and that it was done with the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant.

Page 1 of 5 AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(6)]

A person acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to the attendant circumstances if he/she is aware of the existence of such circumstances or he/she believes or hopes that they exist.

The second element that the State must prove beyond a reasonable doubt is that the defendant used physical force or coercion in committing the act of sexual contact. The State is not required to prove that the victim resisted.
The terms physical force and coercion have special meaning under this statute which I will now explain to you.

Physical force is defined as the commission of the act of sexual contact without the victims freely and affirmatively given permission to the specific act of contact alleged to have occurred. You must decide whether the defendants alleged act of contact was undertaken in circumstances that led the defendant reasonably to believe that the victim had freely given affirmative permission to the specific act of sexual contact. Simply put, affirmatively given permission means the victim did or said something which would lead a reasonable person to believe (he/she) was agreeing to engage in the act of sexual contact, and freely given permission means the victim agreed of (his/her) own free will to engage in the act of sexual contact.

Freely and affirmatively given permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person that affirmative and freely given permission for the specific act of sexual contact had been given. Persons need not, of course, expressly announce their consent to engage in an act of sexual intercourse for there to be affirmative permission. Permission to engage in an act of sexual contact can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

Proof that the act of sexual contact occurred without the victims permission can be based on evidence of conduct or words in light of surrounding circumstances, and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that the defendant did not actually believe that such permission had been freely given, or that such a belief was unreasonable under all of the circumstances. In determining the reasonableness of defendants belief that the victim had freely given affirmative permission, you must keep in mind that the law places no burden on the alleged victim to have expressed non-consent or to have denied permission. You should not speculate as to what the alleged victim thought or desired or why (he/she) did not resist or protest. The State is not required to prove that the victim resisted.

2See N.J.S.A.2C: 14-1j and 2C:13-5.

To find that the defendant used coercion, you must find that with the purpose, that is, conscious object, to unlawfully restrict[victims]freedom of action to engage in or refrain from engaging in the act of sexual contact, the defendant threatened to:

1. The definition of physical force in this charge is taken fromState in the Interest of M.T.S., 129N.J.422, 444-449 (1992).

Page 2 of 5AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(6)]


[Charge applicable language]

(1) inflict bodily injury on anyone or any other offense;

(2) accuse anyone of an offense;

(3) expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his or her credit or business repute;

(4) take or withhold action as an official, or cause an official to take or withhold action;

(5) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(6) perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships.
In other words, to find that the defendant used coercion, you must find that the defendants purpose, that is, conscious object, was to compel[victim]to engage in an act of sexual contact by threatening (him/her).

The third element that the State must prove beyond a reasonable doubt is that as a result

AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a(6)]

3. State v. Walker, 216N.J. Super. 39, 44 (App. Div.),certif. denied, 108N.J.179 (1987).

4. This language on causation is written on the assumption that no culpability on the part of the defendant is required for causing injury to the victim. If, however, causing the injury is a material element for which a purposeful [knowing] mental state is required,see N.J.S.A.2C:2-2c(3), the second part of the causation element should read: two, that the victims injury must have been within the defendants design [contemplation] or, if not, the actual injury must involve the same kind of injury or harm as that designed [contemplated] and not be too remote, accidental in its occurrence or dependent on another's volitional act to have a just bearing on the defendants liability or on the gravity of his offense.See N.J.S.A.2C:2-3b.

5. If the State and the defendant offer different factual theories of causation, each should be summarized for the jury of the defendants conduct, the victim sustained severe personal injury. According to the law, severe personal injury means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain. Bodily injury means physical pain, illness or any impairment of physical condition.

[Charge if applicable]

Incapacitating mental anguish means severe emotional distress or suffering which results in a temporary or permanent inability of the victim to function in some significant aspect of (his/her) life, such as in (his/her) employment, (his/her) ability to care for (himself/herself), or in (his/her) capacity as spouse, homemaker or mother/father. Temporary incapacity means more than a mere fleeting, short-lived or brief incapacity.

[If there is an issue as to whether the defendants conduct caused the injury, add the following:

To find that the severe injury sustained by the victim was caused by the defendants conduct, you must find first, that but for the defendants conduct, the victim would not have sustained severe personal injury; and second, that the victims injury was the probable consequence of the defendants conduct.4In order for the injury to be a probable consequence of the defendants conduct, the injury must not have been too remote, or too accidental in its occurrence, or too dependent on another's volitional act(s) to have a just bearing on the defendants liability or the gravity of his offense. In other words, you must decide if the State has proven beyond a reasonable doubt that the injury did not occur in such an unexpected or unusual manner that it would be unjust to find defendant responsible for the injury.

AGGRAVATED CRIMINAL SEXUAL CONTACT N.J.S.A. 2C:14-3a [2C:14-2a

[In all cases, judge should summarize factual allegations of State and defense here if appropriate]

[Charge the following language in all cases]

If you find that the State has proven every element, beyond a reasonable doubt, then you must find the defendant guilty of aggravated criminal sexual contact. If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated criminal sexual contact.

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