ENDANGERING
THE WELFARE OF A CHILD
(PORNOGRAPHY)
N.J.S.A. 2C:24‑4b(5)(a) model jury charge
Defendant is charged in count ______ of
the indictment with endangering the welfare of a child.
[READ COUNT OF INDICTMENT]
The statute under which this charge is
based reads in pertinent part:
Any person who knowingly receives for the
purpose of selling or who knowingly sells, procures, manufactures, gives,
provides, lends, trades, mails, delivers, transfers, publishes, distributes,
circulates, disseminates, presents, exhibits, advertises, offers or agrees to
offer, through any means, including the Internet, any photograph, film,
videotape, computer program or file, video game or any other reproduction or
reconstruction which depicts a child engaging in a prohibited sexual act or in
the simulation of such an act is guilty of a crime.
In order to convict defendant of this
charge, the State must prove the following elements beyond a reasonable doubt:
1. That
defendant [received for the purpose of selling] [sold] [procured] [manufactured][gave]
[provided] [lent] [traded] [mailed] [delivered] [transferred] [published]
[distributed] [circulated] [disseminated] [presented] [exhibited] [offered]
[agreed to offer] through any means, including [choose appropriate] the
Internet, any photograph, film, videotape, computer program or file, video game
or any other reproduction or reconstruction of a child.
2. That
defendant did so knowingly.
3. That
the [child] [children] depicted in the [choose appropriate] photograph, film,
videotape, computer program or file, video game or any other reproduction or
reconstruction [was] [were] engaging in a prohibited sexual act or in the
simulation of such an act.
4. That
defendant knew that the [child] [children] [was] [were] engaging in a
prohibited sexual act or in the simulation of such an act.
The first element that the State must
prove beyond a reasonable doubt is that defendant [received for the purpose of
selling] [sold] [procured] [manufactured][gave] [provided] [lent] [traded]
[mailed] [delivered] [transferred] [published] [distributed] [circulated]
[disseminated] [presented] [exhibited] [offered] [agreed to offer] through any
means, including the Internet, any photograph, film, videotape, computer
program or file, video game or any other reproduction or reconstruction of a
child.
A child means any person under the age of
16 years of age. The State must prove
beyond a reasonable doubt that the child[ren] was [were] under the age of 16 at
the time of the offense. It is not a
defense that the defendant did not know that the child[ren] was [were] under
the age of 16 or that the defendant believed that the child[ren] was [were] 16
years old or older, even if such a mistaken belief was reasonable.[1]
[USE IF DEFENDANT ASSERTS “VIRTUAL CHILD”
DEFENSE]
A child means any person under the age of
16 years of age. The State must prove
beyond a reasonable doubt that the [child][children] [was] [were] under the age
of 16 at the time of the offense.
Moreover, the State must prove beyond a reasonable doubt that the images
in question were of [a] real [child] [children] and that defendant knew that
the images were of [a] real [child][children].[2]
It is not a defense that the defendant
did not know that the [child][children] [was] [were] under the age of 16 or
that the defendant believed that the [child][children] [was] [were] 16 years
old or older, even if such a mistaken belief was reasonable.[3]
Reproduction means, but is not limited
to, computer generated images.
[EXCEPT
WHEN THE ALLEGATION IS RECEIVING FOR THE PURPOSE
OF
SELLING, CHARGE THE FOLLOWING AS THE SECOND ELEMENT]
The second element that the State must
prove beyond a reasonable doubt is that defendant knowingly [sold] [procured]
[manufactured][gave] [provided] [lent] [traded] [mailed] [delivered]
[transferred] [published] [distributed] [circulated] [disseminated] [presented]
[exhibited] [offered] [agreed to offer] through any means, including the
Internet, any photograph, film, videotape, computer program or file, video game
or any other reproduction or reconstruction of a child.
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 and can only be
determined by inference 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 inference 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.
[WHEN
THE ALLEGATION IS RECEIVING FOR THE PURPOSE OF SELLING, CHARGE THE FOLLOWING AS
THE SECOND ELEMENT]
The second element that the State must
prove beyond a reasonable doubt is that defendant knowingly received for the
purpose of selling through any means, including the Internet, any photograph,
film, videotape, computer program or file, video game or any other reproduction
or reconstruction of a child.
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.
I have used the phrase “with
purpose.” A person acts purposely with respect to the nature of his/her
conduct or the result of that conduct 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 attendant circumstances if the person is aware of the existence of
such circumstances or believes or hopes that they exist. “With purpose,”
“designed,” “with design,” or equivalent terms have the same meaning.
Knowledge and purpose are conditions of
the mind which cannot be seen and can only be determined by inference 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 inference 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 IN ALL CASES]
The third element that the State must
prove beyond a reasonable doubt is that the [child] [children] depicted in the
photograph, film, videotape, computer program or file, video game or any other
reproduction or reconstruction [was] [were] engaging in a prohibited sexual act
or in the simulation of such an act.
A prohibited sexual act means
[CHOOSE APPROPRIATE]
sexual intercourse, which is penetration, however slight,
of the vagina by a penis.[4]
anal intercourse, which is penetration, however slight,
into the anus.[5]
masturbation, which is stimulation of the genitals.[6]
bestiality, which is a sexual connection between a
person and an animal.[7]
sadism, which is sexual gratification dependent largely on the
infliction of pain on others.[8]
masochism, which is sexual gratification dependent
largely on the infliction of physical or mental abuse on the person.[9]
fellatio, which is oral contact with the male
sexual organ.[10]
cunnilingus, which is oral contact with the female
sex organ.[11]
nudity, if depicted for the purpose of sexual stimulation or
gratification of any person who may view such depiction.
vaginal intercourse, which is the penetration of the vagina,
or [where appropriate] of the space between the labia majora or outer
lips of the vulva.[12]
sexual penetration, which is insertion of the hand, finger
or object into the anus or vagina, either by the defendant or on the
defendant’s instructions.[13]
sexual contact, which is an intentional touching by the
victim or defendant, either directly or through clothing, of the victim’s or
defendant’s intimate parts for the purpose of degrading or humiliating the
victim or sexually arousing or sexually gratifying the defendant.[14]
The fourth element that the State must
prove beyond a reasonable doubt is that defendant knew that the [child]
[children] depicted in the photograph, film, videotape, computer program or
file, video game or any other reproduction or reconstruction [was] [were]
engaging in a prohibited sexual act or in the simulation of such an act. I have already defined knowingly for you.
If you find that the State has proven
each element beyond a reasonable doubt, then you must find defendant
guilty. If you find that the State has
failed to prove any element beyond a reasonable doubt, then you must find
defendant not guilty.
[1] N.J.S.A. 2C:24-4b(6). See State
v. Perez, 177 N.J. 540, 555 (2003).
[2] State v. May, 362 N.J. Super.
572, 588 (App. Div. 2003).
[3] N.J.S.A. 2C:24-4b(6). See State
v. Perez, 177 N.J. 540, 555 (2003).
[4] Hice v. State, 593 S.W.2d 57,
64 (Ark. 1980) and cases cited there.
[5] State v. Gallagher, 286 N.J. Super.
1, 13 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).
[6] People v. Lamb, 90 Cal. Rptr.2d
565, 576 (Ct. App. 1999)
[7] State v. Bonynge, 450 N.W.2d
331, 338 (Minn. Ct. App. 1990).
[8] Ex Parte Anderson, 902 S.W.2d
695, 700 (Tex. Ct. App. 1995).
[9] Id. at 700.
[10] State in the Interest of S.M., 284 N.J.
Super. 611, 616-19 (App. Div. 1995).
[11] State v. Fraction, 206 N.J. Super.
532, 535-36 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986).
[12] See 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.”
[13] N.J.S.A.
2C:24-4b(1)(j) refers to “[a]ny act of sexual penetration or sexual contact as
defined in N.J.S. 2C:14-1.” Every
other act of “penetration” referred to in N.J.S.A. 2C:14-1, except for
vaginal intercourse, is set forth in the definition of prohibited sexual
act.
[14] N.J.S.A.
2C:14-1d. See 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.”