(WHICH PRECLUDES THE
INFLICTION OF THE HARM)
(N.J.S.A.
2C:2-10)
As part of his/her defense to the charge of
_____________________, the defendant contends that he/she is not
guilty because the victim consented to the alleged criminal activity and was
therefore not harmed in a way that the law seeks to prevent.
In considering this contention you
should understand that the consent of the victim can be a defense if it
precludes the infliction of the harm or evil that the law seeks to prevent
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 judgment 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
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 reasonably 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]
In this case, as I have already
explained to you, the defendant is charged with a violation of a provision of
our criminal law which reads in pertinent part:
READ
STATUTE
This provision of our law was
intended to: (DISCUSS THE PURPOSE OF
THE STATUTE AND THE HARM OR EVIL IT SEEKS TO PREVENT).
Accordingly, you are advised that if
the victim was not harmed or threatened in a manner that the statute seeks to
prevent because (he/she) actually consented to the alleged criminal conduct,
then the defendant has a valid defense.
Of course, you are reminded that the
State has the burden of proving each element of the offense beyond a reasonable
doubt and must also prove beyond a reasonable doubt that the victim did not
give (his/her) legally effective consent as I have defined that term for you.[4]
Thus, if you find that the State has
not proven each element of the offense beyond a reasonable doubt or also has
not disproved the defense of consent beyond a reasonable doubt, then you must
find the defendant not guilty.
If, on the other hand, you are
satisfied that the State has proven each element of the offense beyond a
reasonable doubt and has also proven beyond a reasonable doubt that the victim
did not consent or that (his/her) consent was not legally effective, then you
must find the defendant guilty as charged.[5]
[1] Supplemental
instructions regarding individual factors and code definitions of key terms
should be provided where appropriate.
[2] State
v. Brown, 143 N.J. Super, 571, 577 (Law Div. 1976, aff'd 154 N.J.
Super, 511 (App. Div. 1977).
[5] If
the defendant claims he mistakenly believed that the victim consented, appropriate
instructions on ignorance or mistake, N.J.S.A. 2C:2-4, may be necessary.