DISEASED PERSON COMMITTING AN ACT OF SEXUAL PENETRATION
N.J.S.A.
2C:34-5(b) model jury charge
(Defendant)
is charged with committing an act of sexual penetration while infected with a
specific virus. 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 human immune deficiency virus (HIV) or any other related virus identified
as a probable causative
agent of acquired immune deficiency syndrome (AIDS), 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 AS APPROPRIATE: human
immune deficiency virus (HIV) or any other related virus identified as a
probable causative agent of acquired immune deficiency syndrome (AIDS)].
Second,
that, at that time, (defendant) knew that he/she was so infected;
Third,
that, at the time, (defendant) committed an act of sexual penetration with
(another person);
Fourth,
that (that 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 human immune deficiency virus or any other
related virus identified as a probable causative agent of acquired immune deficiency
syndrome.
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 virus]. The State
must prove beyond a reasonable doubt that (the other person) was not informed
of [the specified virus] 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.