Monday, August 13, 2007

AGGRAVATED CRIMINAL SEXUAL CONTACT (VICTIM HELPLESS, MENTALLY DEFECTIVE/INCAPACITATED)

N.J.S.A 2C:14-3a [2C:14-2a(7)]
Count _______ of the indictment charges the defendant with aggravated criminal sexual contact.
[READ COUNT OF INDICTMENT]
That section of our statutes provides in pertinent part:
An actor is guilty of aggravated sexual contact if he commits an act of sexual contact with another person whom the actor knew or should have known was [choose appropriate] physically helpless, mentally defective or mentally incapacitated.
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 the defendant acted knowingly.
3. That at the time of the sexual contact, the victim was physically helpless, mentally defective or mentally incapacitated.
4. That defendant knew or should have known under the circumstances that the victim was physically helpless, mentally defective or mentally incapacitated.
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.
AGGRAVATED CRIMINAL SEXUAL CONTACT
(VICTIM HELPLESS, MENTALLY DEFECTIVE/
INCAPACITATED)
N.J.S.A. 2C:14-3a [2C:14-2a(7)]
Page 2 of 4
son.
In the view is defined as within the victim’s field of vision.1] Intimate parts are defined as the sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a per
Here, the State alleges that defendant committed an act of sexual contact by (describe conduct alleged).
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 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/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 sexual contact, (name of victim) was [choose appropriate] physically helpless, mentally defective or mentally incapacitated.
Physically helpless means that condition in which a person is unconscious or is physically
1 State v. Zeidell, 154 N.J. 417 (1998). The State does not have to prove that the child actually saw the conduct. It is sufficient for the State to prove that there was an unreasonable risk that the child might have seen the defendant. State v. Breitweiser, 373 N.J. Super. 271, 286-87 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).
AGGRAVATED CRIMINAL SEXUAL CONTACT
(VICTIM HELPLESS, MENTALLY DEFECTIVE/
INCAPACITATED)
N.J.S.A. 2C:14-3a [2C:14-2a(7)]
Page 3 of 4
unable to flee or is physically unable to communicate unwillingness to act.2
Mentally defective means that condition in which a person suffers from 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.3 A person is mentally defective 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 one’s 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.4
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.5
2 N.J.S.A. 2C:14-1g.
3 N.J.S.A. 2C:14-1h.
4 State v. Olivio, 123 N.J. 550, 563-64 (1991).
5 N.J.S.A. 2C:14-1i.
AGGRAVATED CRIMINAL SEXUAL CONTACT
(VICTIM HELPLESS, MENTALLY DEFECTIVE/
INCAPACITATED)
N.J.S.A. 2C:14-3a [2C:14-2a(7)]
Page 4 of 4
The fourth element that the State must prove beyond a reasonable doubt is that defendant knew or should have known under the circumstances that the (name of victim) was [choose appropriate] physically helpless, mentally defective or mentally incapacitated.
If the State has proven each element beyond a reasonable doubt, then you must find defendant guilty. If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.