Aggravated Criminal Sexual Contact | N.J.S.A. 2C:14‑3a [2C:14-2a(5)(a) and(b)]

N.J.S.A. 2C:14‑3a [2C:14-2a(5)(a) and(b)])

Revised 2/24/97

The indictment charges the defendant with aggravated criminal sexual contact as follows:

[Read pertinent count(s) of indictment]

The statute on which this charge is based provides that an actor is guilty of aggravated criminal sexual contact if, aided and abetted by one or more other persons, [he/she] commits an act of sexual contact with another person, and

[charge applicable sections:]

[1]  uses physical force or coercion.

[2]  the other person is one whom the defendant knew or should have known  was physically helpless, mentally defective or mentally incapacitated.

In order for you to find the defendant guilty of aggravated criminal sexual contact, you must find that the State has proven each of the following three elements beyond a reasonable doubt:

First, that the defendant committed an act of sexual contact with   [name of victim]  ,

Second, that the defendant was aided or abetted by one or more other persons in the commission of the act of sexual contact, and

Third, that [charge applicable section(s)]:

[1]  the defendant used physical force or coercion in committing the act of sexual contact.

[2]  that the defendant knew or should have known that  [victim]  was physically helpless, mentally defective or mentally incapacitated.

For a person to be found guilty of aggravated criminal sexual contact, the State is not required to prove that the victim resisted.

The first element the State is required to prove is that the defendant committed an act of sexual contact with  [victim] , as  charged in the indictment.  According to the law, sexual contact   means an intentional touching by the victim or the 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.

To constitute criminal conduct under this statute, sexual contact of the defendant with [himself/herself] must be in view of the victim whom the defendant knows to be present, and must be done with the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the defendant.

Intimate parts means the following body parts:  sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.

For you to find that the defendant committed an act of criminal 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 the victim or sexually arousing or sexually gratifying the defendant.  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 [he/she] believes or hopes that they exist.

The second element that the State must prove beyond a reasonable doubt is that the defendant was aided or abetted by one or more other persons in the commission of the act of sexual contact.

The word aid means to assist, support or supplement the efforts of another, and the word abet means to encourage, counsel, incite or instigate the commission of the crime. Aiding or abetting does not have to be proved by direct evidence of a formal plan to commit the crime, verbally agreed to by all who are charged or involved.  The proof may be circumstantial.  Participation and agreement can be established from conduct as well as spoken words.
[charge on appropriate third element:]
[2C:14-2a(5)(a) physical force or coercion:]

The third element that the State must prove beyond a reasonable doubt is that the defendant used physical force or coercion in committing the act of sexual contact.  The State is not required to prove that the victim resisted.

The terms "physical force" and "coercion" have special meaning under this statute which I will now explain to you.[1]

Physical force is defined as the commission of the act of sexual contact without the victim's freely and affirmatively given permission to the specific act of contact alleged to have occurred. You must decide whether the defendant's alleged act of contact was  undertaken in circumstances that led the defendant reasonably to believe that the victim had freely given affirmative permission to the specific act of sexual contact.  Simply put, affirmatively given permission means the victim did or said something which would lead a reasonable person to believe [she/he] was agreeing to engage in the act of sexual contact, and freely given permission means the victim agreed of [her/his] own free will to engage in the act of sexual contact.

Freely and affirmatively given permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person that affirmative and freely given permission for the specific act of sexual contact had been given.  Persons need not, of course, expressly announce their consent to engage in an act of sexual intercourse for there to be affirmative permission.  Permission to engage in an act of sexual contact can be and indeed often is indicated through physical actions rather than words.  Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

Proof that the act of sexual contact occurred without the victim's permission can be based on evidence of conduct or words in light of surrounding circumstances, and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed  that there was affirmative and freely given permission.  If there is evidence to suggest that the defendant reasonably believed that  such permission had been given, the State must demonstrate either that the defendant did not actually believe that such permission had been freely given, or that such a belief was unreasonable under all of the circumstances.  In determining the reasonableness of defendant's belief that the victim had freely given affirmative permission, you must keep in mind that the law places no burden on the alleged victim to have expressed non-consent or to have denied permission. You should not speculate as to what the alleged victim thought or desired or why [she/he] did not resist or protest.  The State is not required to prove that the victim resisted.

To find that the defendant used coercion, you must find that with the purpose, that is, conscious object, to unlawfully restrict  [victim's]   freedom of action to engage in or refrain from engaging in the act of sexual contact, the defendant threatened to:[2]

[charge applicable language]

(1) inflict bodily injury on anyone or any other offense;

(2) accuse anyone of an offense;

(3) expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his or her credit or business repute;

(4) take or withhold action as an official, or cause an official to take or withhold action;

(5) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(6) perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his or her health, safety, business, calling, career, financial condition, reputation or personal relationships.

In other words, to find that the defendant used coercion, you must find that the defendant's purpose, that is, conscious object, was to compel   [victim]   to engage in an act of sexual contact by threatening [her/him].

[2C:14-2a(5)(b) victim physically helpless, mentally defective or incapacitated:]

The third element that the State must prove beyond a reasonable doubt is that [name of victim] is one whom the defendant knew, or should have known, was physically helpless, mentally defective or mentally incapacitated.

Physically helpless means that condition in which a person is unconscious or physically unable to flee or is physically unable to communicate unwillingness to act.  [Include the following language if appropriate:  That someone is physically helpless may be established by proof that the person was actually asleep.[3]]

Mentally defective means that condition in which a person suffers from a mental disease or defect which renders that person  temporarily or permanently incapable of understanding the nature of [his/her] conduct, including but not limited to, being incapable of providing consent.[4] A person is mentally defective under the law if, at the time of the sexual activity, the mental disease or defect rendered him or her unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another.[5] The concept of "mentally defective" includes both the capacity to understand and the capacity of the individual to consent with respect to personal sexual activity.  The capacity to consent involves knowing that one's body is private and is not subject to the physical invasions of another, and that one has the right and ability to refuse to engage in sexual activity.  The capacity to understand, which is also part of the idea of the capacity to consent, involves the knowledge that the conduct is distinctively sexual.  In the context of this criminal statute, that knowledge extends only to the physical or physiological aspects of sex; it does not extend to an awareness that sexual acts may be morally right or wrong and have probable serious consequences, such as pregnancy and birth, disease, infirmities,  adverse psychological or emotional disorders.[6]

Mentally incapacitated means that condition in which a person is rendered temporarily incapable of understanding or controlling  [his/her] conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without [his/her] prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of understanding or controlling [his/her] conduct.[7]

[In all cases, judge should summarize factual allegations of State and defense here if appropriate]

[charge the following language in all cases:]

In summary, if you find that the State has proven, beyond a reasonable doubt, each of the three elements as I have explained them, that is, one, that defendant committed an act of sexual contact, two, that the defendant was aided or abetted by one or more other persons, and three, that [insert applicable third element], then you must find the defendant guilty of the crime of aggravated criminal sexual contact.  On the other hand, if you find that the State has failed to prove any of the three elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated criminal sexual contact.