7.1-1 Sexual Assault in the First Degree -- § 53a-70 (a) (1)
Revised to April 23, 2010
The defendant is charged [in count __] with sexual assault in the first degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse <insert one or both1 of the following:>
by the use of force against such other person or a third person, [or]
by the threat of the use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Sexual intercourse
The first element is that the defendant compelled the complainant to engage in sexual intercourse.2 “Sexual intercourse" means vaginal intercourse, anal intercourse, fellatio or cunnilingus. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration, however, is not required for the commission of cunnilingus. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the other person's body.
"Compelled" has its ordinary meaning. It means that the complainant did not consent and that the defendant must have required the complainant to engage in sexual intercourse against (his/her) will. If you find that the complainant consented to the act of sexual intercourse, you cannot find that the act was compelled. Such consent must have been actual and not simply acquiescence brought about by force, by fear, or by shock. The act must have been truly voluntary. Consent may be express or you may find that it is implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine. The defendant has no burden to prove consent. The state must prove compulsion.
Element 2 - Use of force or
threat of use of force
The second element is that the sexual intercourse was accomplished by <insert one or both of the following:>3
the use of force against the complainant or another party, [or]
- the threat of the use of force against the complainant or another party which reasonably caused the complainant to fear physical injury to (himself / herself) or another party.
"Use of force" means the use of a dangerous instrument or the use of actual physical force or violence or superior physical strength against another person. <Include as appropriate:>
"Dangerous instrument" means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. It is important to note that the article need not be inherently dangerous; all that is required is that the article was capable of causing death or serious physical injury under the circumstances in which it was used. Any article or substance, without limitation and even though harmless under normal use, may be found by you to be a dangerous instrument if, under the circumstances of its use or threatened or attempted use, it is capable of producing serious physical injury or death. The state need not prove that in fact death or serious physical injury resulted, only that the instrument had that potential under the circumstances.
- It is not necessary for the state to prove that the defendant was armed with or used any weapon for you to find that the defendant used force. Use of force means that the defendant must have used actual physical force or violence or superior physical strength to compel the other person to submit to sexual intercourse.
- You may find a threat of the use of force because you find that a threat was actually expressed or you may find a threat implied from the circumstances and from what you find to have been the defendant's conduct. Any such threat must have been such that it reasonably caused the complainant to fear physical injury to (herself/himself/another person). "Physical injury" means impairment of physical condition or pain. Whether the fear of physical injury was reasonable is a question of fact for you to determine from the circumstance that you find existed at the time. <Reference if appropriate evidence concerning, e.g., any injury inflicted, relative sizes, place of occurrence, etc.>
- In this case, the state has charged that the sexual intercourse was compelled both by the use of force and by the threat of the use of force. These are the two methods by which compulsion may be demonstrated and proved. That element will be established as long as each of you find it proved beyond a reasonable doubt that the intercourse was compelled either by the use of force or the threat of the use of force. Simply put, it is not necessary for the state to prove that the intercourse was compelled both by the use of force and by the threat of the use of force, as long as each one of you is satisfied that it was compelled by force or the threat of the use of force.4
In summary, the state must prove beyond a reasonable doubt that 1) the defendant compelled another person to engage in sexual intercourse, and 2) that this was accomplished by the (the use of force against the other person or against a third person / or the threat of the use of force against the other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person).
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of sexual
assault in the first degree, then you shall find the defendant guilty. On the
other hand, if you unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall then find the defendant not
1 In State v. Chapman, 229 Conn. 529, 536-37 (1994), the court held that it was improper to instruct the jury regarding the "use of force . . . or the threat of use of force," when the defendant was charged only with the "use of force" and no evidence had been presented regarding the "threat of the use of force."
2 It is not necessary that the defendant be the one to have engaged in intercourse with the victim. State v. Warren, 14 Conn. App. 688, 694, cert. denied, 209 Conn. 805 (1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 839, 102 L.Ed.2d 971 (1989).
3 See footnote 1.
4 The "use of force" and the "threat of the use of force" are not conceptually distinct methods of compulsion for purposes of giving a unanimity instruction. State v. Tucker, 226 Conn. 618, 644-50 (1993).
Section 53a-70 (b) provides an enhanced penalty if the victim is under 16 years of age, and a greater mandatory minimum if the victim is under 10 years of age. The jury must find this fact proved beyond a reasonable doubt. See Sentence Enhancers, Instruction 2.11-4.