(N.J.S.A. 2C:14-2a(2))
Count ________ of the indictment charges the defendant with aggravated sexual assault.
That section of our statutes provides in pertinent part:
An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person where the victim is at least thirteen but less than sixteen years old and:
The actor has supervisory or disciplinary power over the victim because of his legal, professional or occupational status,
The actor is a resource family parent, guardian, or stands in loco parentis within the household.
In order to convict defendant of this charge, the State must prove the following elements beyond a reasonable doubt:
1. That defendant committed an act of sexual penetration with the victim;
2. That at the time of the penetration, (name of victim) was at least 13 years old but less than 16 years old;
3. That defendant is related to the victim by blood or affinity to the first, second or third degree;
That defendant had supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status;
ORDefendant is a [resource family parent], [guardian] [stands in loco parentis within the household], and
4. That defendant acted knowingly.
The first element that the State must prove beyond a reasonable doubt is that defendant committed an act of sexual penetration with (name of victim).
According to the law, [choose appropriate] vaginal intercourse, cunnilingus, fellatio or anal intercourse or insertion of the hand, finger or object into the anus or vagina, either by the defendant or by another person upon the defendant’s instruction, constitute(s) “sexual penetration.” Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant.
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.[2]The definition of “cunnilingus” is oral contact with the female sex organ.[3]
The third element that the State must prove beyond a reasonable doubt is that:
Defendant is related to the victim by blood or affinity to the first, second or third degree. Here, the State alleges that defendant is related to (name of victim) by (type of relationship).
The fourth element that the State must prove beyond a reasonable doubt is that defendant acted knowingly. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he 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 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 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 had a certain state of mind when he 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 acts and conduct and from all he 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 beyond a reasonable doubt each of these elements, then you must find defendant guilty of aggravated sexual assault. if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of aggravated sexual assault.
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[1] First degree – – parents and children; Second degree– grandparents, grandchildren, brothers and sisters; Third degree – – uncles, aunts, nieces, nephews, great grandparents, great grandchildren. See generally State v. Gaines, 36 N.J. Eq. 297 (E. & A. 1882).
[2] State v. J.A., 337 N.J. Super. 114 (Ap. 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.”
[3] State v. Fraction, 206 N.J. Super. 532, 535-36 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986).
[4] State in the Interest of S.M., 284 N.J. Super. 611, 616-19 (App. Div. 1995).
[5] State v. Gallagher, 286 N.J. Super. 1, 13 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).
[6] State v. Perez, 177 N.J. 540, 555 (2003); N.J.S.A. 2C:14-5c.
[7] These factors are suggested by State v. Buscham, 360 N.J. Super. 346, 362 (App. Div. 2003), where the issue was defendant’s role as a coach. The parties should identify factors in their own particular case which would be significant for the jury to consider in determining whether the defendant had supervisory or disciplinary power over the victim.
[8] N.J.S.A. 30:4C-26.4.
[9] These factors are suggested by Hardwicke v. American Boychoir School, 189 N.J. 69, 91 (2006).