(WHICH NEGATES AN ELEMENT OF THE OFFENSE)
(N.J.S.A. 2C:2-10) model jury charge
As
part of his/her defense to the charge of , the defendant contends that
the State has not proven each element of the offense beyond a reasonable doubt
because the victim consented to the alleged criminal activity. In considering
this contention you should understand that consent of the victim can be a
complete defense to a criminal charge only under certain limited circumstances
which I will describe for you.
First,
you should know that consent in the law has a meaning very similar to its
everyday meaning. It is the victim's voluntary and serious agreement or
submission to the alleged criminal conduct or the result of that conduct. In
order for consent to give rise to a valid defense it must, of course, be given
freely and it must be legally effective.
Consent
can never be legally effective in providing a defense to a criminal charge if:
(CHOOSE APPROPRIATE FACTOR(S))[1]
(a)
the victim was not legally competent to authorize the conduct charged to
constitute the offense; or
(b)
the victim was by reason of (his/her) (choose appropriate factor) youth, mental
disease or defect or intoxication either known by the defendant to be unable or
was manifestly unable to make a reasonable judgement as to the nature of
harmfulness of the conduct charged to constitute an offense; or
(c)
the victim's consent was induced by force, duress or deception of a kind that
the law defining the offense seeks to prevent.
In
determining whether the consent of the victim was freely and voluntarily given,
you are advised that consent may be openly expressed, implied, or apparent from
the victim's willing participation in the activity in question. Further, you
may consider all that (he/she) said and did at the particular time and place,
all of the surrounding circumstances and whether a normal competent person would
freely and seriously consent to the conduct with which the defendant is
charged.[2]
In this case, as I have already
explained to you the State must prove the following elements beyond a
reasonable doubt:
LIST ELEMENTS OF OFFENSE
Thus,
in considering whether the State has met its burden of proof, you must
determine whether the consent of the victim has negated or made it impossible
for the State to prove any one of these elements. For example:
(Here
discuss factual context of case, i.e., consent of victim in forgery case
negates "without authorization" element.)
(IN CASES INVOLVING BODILY HARM
INCLUDE THE FOLLOWING)
Because
this case involves conduct which caused (or threatened to cause) bodily harm as
I have previously defined that term for you, there is an additional requirement
that must be satisfied before consent can be legally effective and give rise to
a valid defense.
(CHOOSE APPROPRIATE FACTOR)
(1) The bodily harm consented to (or threatened
by the conduct consented to) is not serious; or
(2) The conduct and the harm are reasonable
foreseeable hazards of joint participation in a concerted activity of a kind
not forbidden by law; or
(3) The consent establishes justification for the
conduct under Chapter 3 of the code.[3]
As
you consider these questions and the extent to which consent of the victim may
have negated or nullified any of the elements of the offense, you are reminded
that the burden remains on the State to prove each element of the offense
beyond a reasonable doubt. Therefore, in this case it is also the State's
burden to prove beyond a reasonable doubt that the victim did not give legally
effective consent as I have defined that term which negated any elements of the
offense.
In
conclusion then, if you find that the legally effective consent of the victim
has prevented the State from proving each element of the offense beyond a
reasonable doubt, then you must find him/her not guilty.
If,
on the other hand, you are satisfied beyond a reasonable doubt that the State
has proven each element of the offense because the victim did not consent or
because (his/her) consent was not legally effective than you must find the
defendant guilty as charged.
