DISEASED PERSON COMMITTING AN ACT OF SEXUAL PENETRATION(Venereal Disease)
N.J.S.A. 2C:34-5(a) model jury charge
(Defendant)
is charged with committing an act of sexual penetration while infected with a
venereal disease. The indictment
charging this offense reads:
[READ
INDICTMENT]
The statute prohibiting this conduct
provides, in pertinent part:
A
person is guilty of a crime … if he/she, knowing
that he or she is infected with a venereal disease [CHOOSE AS APPROPRIATE]: such as chancroid, gonorrhea, syphilis,
herpes virus, or any of the varieties or stages of such diseases, commits an
act of sexual penetration without the informed consent of the other person.
For
(defendant) to be guilty of this crime, the State must prove each of the
following elements beyond a reasonable doubt:
First that at the time charged in the
indictment (defendant) was infected with (CHOOSE SPECIFIC DISEASE),
or a variety or stage thereof.
Third, that, at that time, (defendant)
committed an act of sexual penetration with (another person).
Fourth, that (the other person) did not
provide (defendant) with his/her informed consent.
The
first element that the State must prove beyond a reasonable doubt is that
(defendant) was infected with (a venereal disease), or any variety or stage
thereof on [date].
The
second element that the State must prove beyond a reasonable doubt is that
(defendant) knew that he/she was so infected. A person acts knowingly with respect to the
nature of his/her
conduct or the attendant circumstances if he/she is aware that his/her
conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their
existence. A person acts knowingly with
respect to a result of his/her
conduct if he/she is aware that it is practically certain that
his/her
conduct will cause such a result.
“Knowing”, “with knowledge”, and other equivalent terms have the same
meaning.
Knowing
is a state of mind. It cannot be
seen. Often, it can be proved only by
inference drawn from conduct, words, and acts, as well as surrounding
circumstances. Therefore, it is not
necessary that the State present testimony that (defendant) said that he/she had a certain state of mind when he/she did something. 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 (defendant’s) acts and conduct, from all that he/she said
and did at the particular time and place, and from all surrounding
circumstances.
The
third element that the State must prove beyond a reasonable doubt is that
(defendant) engaged in sexual penetration with (another person). Sexual penetration means [SELECT
APPROPRIATE TERMS: vaginal
intercourse, cunnilingus[1],
fellatio[2],
anal intercourse, or the insertion of the hand, finger, or object into the anus
or vagina by (defendant) [WHERE APPROPRIATE ADD: or at his/her instruction]]. Any amount
of insertion, however slight, constitutes penetration; the depth of the
insertion is not relevant.
The fourth element that the State
must prove beyond a reasonable doubt is that (defendant) so acted without
having the informed consent of the other person. Informed consent means the person’s voluntary
and knowing agreement to submit to an act of sexual penetration with a person
having [the specified disease. The State
must prove beyond a reasonable doubt that the victim was not informed of (the
specified disease) with which (defendant) was infected.
If the State has proved each of
these elements beyond a reasonable doubt, your verdict must be guilty of this
charge. If, on the other hand, the State has failed to prove any of these
elements beyond a reasonable doubt, your verdict must be not guilty.
[1] “Cunnilingus”,
oral stimulation of the female sexual organ, is a form of sexual penetration
even if one does not insert his/her tongue into the other’s vagina.
[2] “Fellatio”,
oral stimulation of the male sexual organ, is a form of sexual penetration even
if one’s penis does not enter the other’s mouth. Placing the mouth of another person on the
penis constitutes fellatio.