(N.J.S.A. 2C:14-3a[2C:14-2a(2)])
Count of the indictment charges the defendant with aggravated criminal sexual contact. [READ COUNT OF INDICTMENT]
That section of our statute provides in pertinent part:
A person is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with a victim who is at least 13 years old but less than 16 years old and
[CHOOSE APPROPRIATE]
The actor is related to the victim by blood or affinity to the third degree.1
OR
The actor has supervisory or disciplinary power over the victim because of his legal, professional or occupational status.
OR
The actor is a foster parent, guardian, or stands in loco parentis within the household.
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 contact.
2. That at the time of the contact the victim was at least thirteen but less than sixteen years old and
3. That the defendant is related to the victim by blood or affinity to the third
1 First degree--parents and children; Second degree--grandparents, grandchildren, brothers and sisters; Third degree--uncles, aunts, nieces, nephews, great grandparents, great grandchildren. See generally Smith v. Gaines, 36 N.J. Eq. 297 (E. & A. 1882).
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degree.
OR
That the defendant has supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status.
OR
That the defendant is a foster parent, guardian or stands in loco parentis within the household.
4. That the defendant acted knowingly.
The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual contact with (name of victim).
Sexual contact means an intentional touching by the victim or defendant, either directly or through clothing, of the victim’s or defendant’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant. [If the allegation involves the defendant touching himself/herself, add the following: The touching must have been in view of the victim whom the defendant knew to be present. In the view is defined as within the victim’s field of vision.2]
Intimate parts are defined as the 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
2 State v. Zeidell, 154 N.J. 417 (1998). Whether the child must have seen the conduct is an open question. Id. at 432.
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conduct alleged).
The second element that the State must prove beyond a reasonable doubt is that at the time of the contact, (name of victim) was at least 13 years old but less than 16 years old.
The third element that the State must prove beyond a reasonable doubt is that
Defendant is related to the victim by blood or affinity to the first, second or third degree. Here, the State alleges that defendant is related to (name of victim) by (type of relationship).
OR
Defendant had supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status. In this case, the State alleges that defendant had [supervisory] [disciplinary] power over (name of victim) because of defendant’s status as (insert allegation). In determining whether defendant had [supervisory] [disciplinary] power over (name of victim), you must examine the entire context of the relationship between the defendant and (name of victim). To do so, you should consider the nature of the relationship between the defendant and the victim and whether the relationship was so unequal as to vest [supervisory] [disciplinary] power in the defendant. Among the factors you may consider are whether there was a significant disparity in ages and/or maturity level between the defendant and victim, whether the defendant offered advice and guidance to the (name of victim) on questions and issues outside the defendant’s role as and the power or ability of the defendant to affect the (name of victim) future participation or success.3
3 These factors are suggested by State v. Buscham, 360 N.J. Super. 346, 362 (App. Div. 2003), where the issue was defendant’s role as a coach. The parties should identify factors in their own particular case which would be significant for the jury to consider in determining whether the
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OR
Defendant is (name of victim) foster parent, (name of victim) guardian or stands in loco parentis, that is, in the place of the (name of victim) parents within the household.
The fourth 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 conduct or the attendant circumstances if he 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 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 inference from defendant’s 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 had a certain state of mind when he 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 acts and conduct and from all he said and did at the particular time and place and from all surrounding circumstances established by the evidence.
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 criminal sexual contact. 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 criminal sexual contact.
defendant had supervisory or disciplinary power over the victim.
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