(N.J.S.A. 2C:14-3b) [2C:14-2c(1) through (4)]
Count of the indictment charges defendant with criminal sexual contact. [READ COUNT OF INDICTMENT].
That section of our statutes provides in pertinent part:
An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim and
[CHOOSE APPROPRIATE]
the actor uses physical force or coercion but the victim does not sustain severe personal injury
OR
the victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status
OR
the victim is at least 16 but less than 18 years old and
(1) the actor is related to the victim by blood or affinity to the third degree;
OR
(2) the actor has supervisory or disciplinary power of any nature or in any capacity over the victim;
OR
(3) the actor is a foster parent, a guardian, or stands in loco parentis within the household.
CRIMINAL SEXUAL CONTACT
(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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OR
the victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.
In order to convict defendant of the charges, the State must prove the following elements beyond a reasonable doubt:
1). That defendant committed an act of sexual contact and
[CHOOSE APPROPRIATE]
2). That the defendant used physical force or coercion but the victim did not sustain severe personal injury.
OR
That the victim was [on probation] [on parole] detained in a [hospital] [prison] [institution] and the actor had [supervisory] [disciplinary] power over the victim by virtue of the defendant’s legal, professional or occupational status.
OR
That the victim was at least 16 but less than 18 years old and
(1) the defendant is related to the victim by blood or affinity to the first, second or third degree1.
OR
(2) the defendant had [supervisory] [disciplinary]power of any nature or
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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(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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in any capacity over the victim.
OR
(3) the defendant is a foster parent, a guardian or stands in loco parentis within the household.
OR
The victim is at least 13 but less than 16 and the defendant is at least four years older than the victim.
3). That 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 conduct alleged).
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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(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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The second element that the State must prove beyond a reasonable doubt is that
[CHOOSE APPROPRIATE]
Defendant used physical force or coercion but the victim did not sustain severe personal injury. Physical force is defined as the commission of the act of sexual contact without the victim's freely and affirmatively given permission to the specific act of contact alleged to have occurred. You must decide whether the defendant's 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 [she/he] was agreeing to engage in the act of sexual contact, and freely given permission means the victim agreed of [her/his] 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 victim's permission can be based on
CRIMINAL SEXUAL CONTACT
(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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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 defendant's 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 [she/he] 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 defendant, with the purpose, that is, with the conscious object, to unlawfully restrict (name of victim) freedom of action to engage in or refrain from engaging in the act of sexual contact, threatened to:3
[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;
3 See N.J.S.A. 2C:14-1j and 2C:13-5.
CRIMINAL SEXUAL CONTACT
(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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(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 defendant's purpose, that is, conscious object, was to compel (name of victim) to engage in an act of sexual contact by threatening [her/him]. Severe personal injury means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain.4
OR
The victim was on probation or parole, or was detained in a hospital, prison or other institution and the actor had supervisory or disciplinary power over the victim by virtue of the defendant’s 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
4 N.J.S.A. 2C:14-1f.
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(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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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.5
OR
(Name of victim) was at least 16 but less than 18 years old and (choose appropriate)
(1) defendant is related to (name of victim) by blood or affinity to the first, second or third degree. Here, the State alleges that defendant is (name of victim) (type of relationship).
(2) defendant had [supervisory] [disciplinary] power of any nature or in any capacity over (name of victim). 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.6
5 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 particular case which would be significant for the jury to consider in determining whether the defendant had supervisory or disciplinary power over the victim.
6 See footnote 4 supra.
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(3) 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.
OR
At the time of the sexual contact, (name of victim) was at least 13 but less than 16 years old and defendant was at least four years older than he/she.
The third 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.
Purpose and knowledge are conditions of the mind. They cannot be seen and 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.
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(N.J.S.A. 2C:14-3b [2C:14-2c(1) through (4)]
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If you find that the State has proven beyond a reasonable doubt each of these three elements, then you must find the defendant guilty of the crime of 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 criminal sexual contact.
