Revised to November 17, 2015
"The state once had the burden of proving that the victim had earnestly resisted sexual intercourse. . . . The revision [made by Public Acts 1975, No. 75-619] altered the rape statute by deleting the element of 'forcible compulsion,' and its concomitant meaning of 'physical force that overcomes earnest resistance.' . . . The statute no longer requires that the state prove that physical force overcame earnest resistance, which was used in the past as a prerequisite to proving nonconsensual carnal knowledge by force. . . . Whereas forcible compulsion was once proved by demonstrating that force had overcome resistance, the state is now required to prove that it was the use of force or its threat which caused the victim to engage in sexual intercourse, and does not by its express language require that resistance be proven." State v. Mackor, 11 Conn. App. 316, 321-22 (1987). "Proof of resistance was required in the past as a mode of proving that the intercourse was nonconsensual. Under the present statute, the lack of consent is subsumed by proof of the use of force or the threat of the use of force." Id., 323. "Nonconsent is not an element of the crime of General Statutes § 53a-70 (a), but is embodied within the proof required of the use of force or the threat of the use of force." Id.; see also State v. Griffin, 97 Conn. 169, 186, cert. denied, 280 Conn. 925 (2006); State v. White, 55 Conn. App. 412, 418-21, cert. denied, 252 Conn. 908 (1999).
Consent, often raised as a defense, is more exactly a denial of the element of compulsion. "It is likely that juries in considering the defense of consent in sexual assault cases, though visualizing the issue in terms of actual consent by the complainant, have reached their verdicts on the basis of inferences that a reasonable person would draw from the conduct of the complainant and the defendant under the surrounding circumstances. It is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent, even though there had been some concealed reluctance on her part. If a defendant were concerned about such a possibility, however, he would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented." State v. Smith, 210 Conn. 132, 141 (1989). The Supreme Court clarified its holding in Smith in Efstathiadis v. Holder, 317 Conn. 482 (2015), stating that the Smith holding was intended to apply the criminal negligence standard to § 53a-70 (a) (1). Id., 496. This level of mens rea also applies to § 53a-73 (a) (2) because "they are related statutes designed to address the same type of conduct." Id., 494.
If the force used or threatened to be used in the course of committing sexual assault in the first and third degrees is sufficient to compel the victim to engage in sexual intercourse or to submit to sexual contact, then the lack of consent is implicit. State v. Jackson, 30 Conn. App. 281, 288-89, cert. denied, 225 Conn. 916 (1993); State v. Clinkscales, 21 Conn. App. 411, 419, cert. denied, 215 Conn. 815 (1990).
If a person initially consents to sexual intercourse, but then withdraws that consent and is compelled to continue, then it is sexual assault in the first degree. State v. Siering, 35 Conn. App. 173, 178-85, cert. denied, 231 Conn. 914 (1994) (supplemental instruction on withdrawal of consent was proper statement of law).
"Although it is true that typically in cases in which force has been proven, the evidence demonstrated either violence or some other form of physical coercion, we have consistently held that one also may be guilty of sexual assault in the first degree if one uses one's physical size or strength to threaten another to submit to sexual intercourse and that such threat may be expressed or implied." (Emphasis in original.) State v. Mahon, 97 Conn. App. 503, 512, cert. denied, 280 Conn. 930 (2006); see also State v. Davis, 61 Conn. App. 621, 638-39, cert. denied, 255 Conn. 951 (2001) (quoting court's instruction distinguishing between express and implied threats). In State v. Gagnon, 18 Conn. App. 694, 699, cert. denied, 213 Conn. 805 (1989), coercion was found when the defendant pretended to be a police officer, causing the victim to stop her vehicle. "Such coercion was intended to and did in fact place the victim in a position wherein she was compelled to submit to sexual contact by the defendant." Id., 699.
It is improper to instruct regarding the "use of force . . . or the threat of use of force" when the defendant is charged only with the "use of force" and no evidence is presented regarding the "threat of the use of force." State v. Chapman, 229 Conn. 529, 536-37 (1994).
On the use of force, compare State v. Hufford, 205 Conn. 386, 393 (1987) (because victim was physically helpless due to medical condition, it required no force to remove her clothes), and State v. Mahon, supra, 97 Conn. App. 511 (removal of the victim's clothing was sufficient evidence of the use of force, due to defendant's show of superior strength).
Sexual assault in the first and second degrees, which require sexual intercourse, are general intent crimes. See State v. Pierson, 201 Conn. 211, 216 (1986). "[N]o special instructions as to intent are required for a general intent crime unless something in the evidence presented indicates that the defendant acted involuntarily, without sufficient mental capacity, under duress or while entrapped." (Internal quotation marks omitted.) State v. Jackson, 30 Conn. App. 281, 291, cert. denied, 225 Conn. 916 (1993).
Sexual assault in the third and fourth degrees are specific intent crimes. "The specific intent for sexual assault in the third degree is derived from General Statutes § 53a-65 (3), which provides in relevant part: 'Sexual contact' means any contact with the intimate parts of a person . . . for the purpose of sexual gratification of the actor. . . ." State v. Faria, 254 Conn. 613, 636 n.24 (2000).
"Because not every person who commits sexual assault has intercourse as their ultimate objective, the legislature in the penal code has distinguished between sexual assault with sexual intercourse as its goal and sexual assault with sexual contact as its goal." State v. Milardo, 224 Conn. 397, 405 (1993) (sufficient evidence of intent to compel sexual intercourse). "[T]he state had only to prove that the defendant took a substantial step in a course of conduct that was planned to culminate in intentionally compelling another person to engage in sexual intercourse. Thus, the charge on the element of intent necessary for attempted sexual assault in the first degree need not be more specific than instructing, as the trial court did here, that the state must prove that the defendant intended to compel sexual intercourse, regardless of which of the listed acts in the statutory definition might ultimately have been performed had not the defendant's attack on the victim been interrupted." Id., 413.
Lesser included offenses
Sexual assault in the second degree in violation of § 53a-71 (a) (2) is not a lesser included offense of sexual assault in the first degree because that subsection of second degree sexual assault has an age requirement that first degree sexual assault does not. State v. Michael A., 99 Conn. App. 251, 256-63 (2007).
Sexual assault in the third degree is not a lesser included offense of sexual assault in the first degree, because third degree requires proof of the additional element that the compelled sexual contact was for the purpose of either the sexual gratification of the actor or the humiliation or degradation of the victim. State v. Milardo, 224 Conn. 397, 417 (1993); State v. Mezrioui, 26 Conn. App. 395, 405-406, cert. denied, 224 Conn. 909 (1992). For the same reason, sexual assault in the fourth degree is not a lesser included offense of sexual assault in the second degree. State v. Sirimanochanh, 26 Conn. App. 625, 637 (1992), rev'd on other grounds, 224 Conn. 656 (1993).
Two acts of penetration constitute two separate offenses and do not violate double jeopardy protection. The statute punishes "the act of forcible penetration itself, and, therefore, each penetration by the defendant constituted a separate and distinct repetition of the same prohibited act, irrespective of the brief period of time separating them." State v. Scott, 270 Conn. 92, 100 (2004), cert. denied, 544 U.S. 987, 127 S.Ct. 1861, 161 L.Ed.2d 746 (2005); see also State v. Antonio A., 90 Conn. App. 286, 295, cert. denied, 275 Conn. 926 (2005), cert. denied, 546 U.S. 1189, 126 S.Ct. 1373, 164 L.Ed.2d 81 (2006) (two acts of digital penetration).
The affirmative defense of fraudulent misrepresentation is not available under the statute prohibiting sexual intercourse between a person who is between the ages of thirteen and fifteen and a person who is at least two years older. State v. Blake, 63 Conn. App. 536, 539-42, cert. denied, 257 Conn. 911 (2001) (reviewing statutory history); see also State v. Plude, 30 Conn. App. 527, 539-41, cert. denied, 225 Conn. 923 (1993) (mistake of age is no defense).
"[T]he absence of a marital relationship between the defendant and the victim of a sexual assault is not an essential element of the crime. Rather, the existence of a marital relationship can be raised as an exemption or defense to prosecution for sexual assault in the first degree under § 53a-70 (a). . . . Accordingly, a finding of non-culpability based on the 'marital exemption' of § 53a-65 (2) necessarily depends upon proof of the fact that the victim and the defendant were legally married." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Beaulieu, 82 Conn. App. 856, 862 (2004), aff'd in part and rev'd in part on other grounds, 274 Conn. 471 (2005).
Confidentiality of the complainant's name and address
General Statutes § 54-86e provides that the name, address and other identifying information of a victim of sexual assault are confidential. These instructions refer only to "the complainant." The court may use initials or some other identifier when necessary to refer to the complainant.