ENDANGERING
THE WELFARE OF A CHILD
(PORNOGRAPHY)
N.J.S.A.
2C:24-4b(4) 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 photographs or films a
child in a prohibited sexual act or in the simulation of such an act or who
uses any device, including a computer, to reproduce or reconstruct the image of
a child 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 element beyond a reasonable doubt:
1. That
defendant
[CHOOSE
APPROPRIATE]
photographed or filmed a child in a
prohibited sexual act or in the simulation of such an act, and
OR
used any device, including a computer, to
reproduce or reconstruct the image of a child in a prohibited sexual act or in
the simulation of such an act, and
2. That
defendant did so knowingly.
The first element that the State must
prove beyond a reasonable doubt is that defendant [photographed or filmed]
[used any device, including a computer, to reproduce or reconstruct the image
of] a child[ren] in a prohibited sexual act or in the simulation of such an
act. 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[ren] 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[ren] and that defendant knew that the images were of [a] real
child[ren].[2]
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 [children] was [were] 16 years old or older,
even if such a mistaken belief was reasonable.[3]
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]
Reproduction means, but is not limited
to, computer generated images.
The second element that the State must
prove beyond a reasonable doubt is that defendant knowingly [photographed or
filmed a child in a prohibited sexual act or in the simulation of such an act]
[used any device, including a computer, to reproduce or reconstruct the image
of a child in a prohibited sexual act or in the simulation of such an act, and
photographed].
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.
If you find that the State has proven the
elements of the offense beyond a reasonable doubt, then you must find defendant
guilty. If you find that the State has
failed to prove any element of the offense 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] See 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(j) refers to “[a]ny
act of sexual penetration or sexual contact as defined in N.J.S.A. 2C:14-1.”
Every other act of “penetration” referred to in the 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.”