DISTURBING/DESECRATING
HUMAN REMAINS
(N.J.S.A.
2C:22-1a(3)) model jury charge
Count (INSERT) of the Indictment charges
the defendant with the crime of disturbing/desecrating human remains. The statute on which this count of the
Indictment is based reads in pertinent part:
A person commits an offense if, he commits an act of
(sexual penetration) (sexual contact) upon human remains.
In
order for you to find the defendant guilty of this offense, the State must
prove each of the following elements beyond a reasonable doubt:
(1) That the defendant committed an act of
(sexual penetration) or (sexual contact).
(2) That the act of (sexual penetration) or
(sexual contact) was upon human remains.
(3) That the defendant knew the act was being
committed upon human remains.
(CHARGE IF ALLEGATION OF SEXUAL PENETRATION)[1]
The first
element the State must prove beyond a reasonable doubt is that the defendant
committed an act of sexual penetration.
Here, the State
alleges that defendant committed an act of sexual penetration by (describe
conduct alleged).
Sexual penetration means vaginal intercourse, cunnilingus,
fellatio or anal intercourse or insertion of the hand, finger or object into
the anus or vagina by the actor.[2] The depth of insertion shall not be relevant
as to the question of commission of the crime.
The definition of “vaginal intercourse” is the penetration of
the vagina, or [where appropriate] of the space between the labia majora or outer lips of the vulva.[3]
The definition of “cunnilingus” is oral
contact with the female sex organ.[4]
The definition of “fellatio” is oral contact
with the male sexual organ.[5]
The definition of “anal intercourse” is
penetration of any depth into the anus.[6]
The State must prove beyond a reasonable
doubt that defendant committed the act of sexual penetration knowingly.
A person acts knowingly with respect to the
nature of his/her conduct or the attendant circumstances if he/she 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/she is aware that it is practically certain that
the conduct will cause a result.
“Knowing,” “with knowledge,” or equivalent terms have the same meaning.
Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences 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/she
had a certain state of mind when he/she
did a particular thing. 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 his/her
acts and conduct and from all he/she
said and did at the particular time and place and from all surrounding
circumstances established by the evidence.
(CHARGE IF ALLEGATION
OF SEXUAL CONTACT)[7]
The first element the State must prove beyond
a reasonable doubt is that the defendant committed an act of sexual contact.
Here, the State
alleges that defendant committed an act of sexual contact by (describe conduct
alleged).
Sexual
contact means an intentional touching by the defendant, either directly or
through clothing, of the (intimate parts of the corpse) or (defendant's
intimate parts) for the purpose of degrading or humiliating (name of the
corpse) or sexually arousing or gratifying defendant.
Intimate parts
means [CHOOSE APPROPRIATE] (sexual
organs)(genital area)(anal area)(inner thigh)(groin)(buttock of a
person)(breast of a person).
To find that
defendant committed an act of sexual contact, you must find beyond a reasonable
doubt both that the touching was intentional and that it was done with the
purpose of degrading or humiliating (name of victim) or sexually arousing or
gratifying the defendant.
Intentional means purposeful. A person acts purposely with respect to the
nature of his/her
conduct or a result thereof if it is his/her
conscious object to engage in conduct of that nature or to cause such a
result. A person acts purposely with
respect to the attendant circumstances if he/she
is aware of the existence of such circumstances or believes or hopes that they
exist.
Purpose
is a condition of the mind that cannot be seen and that can be determined only
by inferences from 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/she
had a certain state of mind when he/she
engaged in a particular act. 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 the defendant’s acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding
circumstances.
[WHEN DEFENDANT IS CHARGED WITH TOUCHING HIMSELF/HERSELF, ADD
THE FOLLOWING: The State must prove
beyond a reasonable doubt that the defendant knew a corpse was present. The
State must prove beyond a reasonable doubt that the touching would have been in
the view of the corpse if the corpse were alive.[8] The State is not required to prove that (name
of victim) actually observed or witnessed the alleged sexual contact. Rather, the State must prove that the alleged
sexual contact could have occurred in the view of (name of victim). “Field of vision” is not limited to the
visual direction in which the alleged victim would have been focused upon at
the particular time when the alleged sexual contact is said to have
occurred. Field of vision includes the
areas that (name of victim) would have been capable of viewing.[9] The State must prove beyond a reasonable
doubt that (name of victim) was present.
A
person acts knowingly with respect to the nature of his/her
conduct or the attendant circumstances if he/she
is aware that his 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.[10]
Knowledge
is a condition of the mind that cannot be seen and that can be determined only
by inferences from 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/she
had a certain state of mind when he/she
engaged in a particular act. 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 the defendant’s acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding
circumstances.
(RESUMPTION OF MAIN CHARGE)
The
second element the State must prove beyond a reasonable doubt is that the act
was committed upon human remains.
“Human remains” means the body of a deceased
person or the dismembered part of a body of a living person. It does not
include cremated remains. [11]
The
third element the State must prove beyond a reasonable doubt is that the
defendant knew the act was being committed upon human remains.
Knowledge
is a condition of the mind that cannot be seen and that can be determined only
by inferences from 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/she
had a certain state of mind when he/she
engaged in a particular act. 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 the defendant’s acts and conduct, from all that he/she
said and did at the particular time and place, and from all surrounding circumstances.
If
you find that the State has failed to prove any element of the offense beyond a
reasonable doubt, then you must find the defendant not guilty.
If
you find that the State has proved each element of the offense beyond a
reasonable doubt, then you must find the defendant guilty.
[2] N.J.S.A. 2C:14-1(c) also
references acts done at the actor’s instruction. This language should be
charged if it is alleged the acts of sexual penetration upon the human remains
were committed by a third party at the actor’s request or direction.
[3] State
v. J.A., 337 N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld the charge
given by the trial court in that case which included the following language
which can be used if the circumstances of the specific case are appropriate: “This means that if you find from all of the
evidence presented beyond a reasonable doubt that there was [penile]
penetration to the outer area of the vaginal opening, what is commonly referred
to as the vaginal lips, that is sufficient to establish penetration under the
law.”
[4] State v. Fraction, 206 N.J.
Super. 532, 535-36 (App. Div. 1985), certif. denied, 104 N.J.
434 (1986). Penetration is not necessary for this act.
[5] State in the Interest of S.M.,
284 N.J. Super. 611, 616-19 (App. Div. 1995). Penetration is not necessary for this act.
[6] State
v. Gallagher, 286 N.J. Super. 1, 13 (App. Div. 1995), certif.
denied, 146 N.J. 569 (1996).
[10] Since there is no enumerated mental state
codified in the statute, the gap-filler provision of N.J.S.A.
2C:2-2(c)(3) renders the mental state to be “knowingly.”
