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Criminal Jury Instructions

Criminal Jury Instructions Home

7.1-9  Sexual Assault in the Third Degree -- § 53a-72a (a) (2)

Revised to December 1, 2007 (modified November 1, 2008)

The defendant is charged [in count __] with sexual assault in the third degree.  The statute defining this offense reads in pertinent part as follows: 

a person is guilty of sexual assault in the third degree when such person engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in the statute that specifies which relatives are prohibited from marrying one another.1

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 and the complainant engaged in sexual intercourse.  "Sexual intercourse" means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex.  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 complainant's body.

Element 2 - Knowledge of kindred
The second element is that the defendant knew that the complainant was related to (him/her) as a (mother / grandmother / daughter / granddaughter / sister / aunt / niece / stepmother / stepdaughter / father / grandfather / son / grandson / brother / uncle / nephew / stepfather / stepson).  A person acts "knowingly" with respect to conduct or to a circumstance when (he/she) is aware that (his/her) conduct is of such nature or that such circumstance exists.  <See Knowledge, Instruction 2.3-3.>

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant and the complainant engaged in sexual intercourse, and 2) the defendant knew that they were related as <define relationship>.

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 third 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 guilty.
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1 General Statutes § 46b-21 reads as follows:  "Kindred who may not marry.  No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson.  Any marriage within these degrees is void."  Section 53a-72a (a) (2) encompasses conduct occurring between persons related by adoption as well as by blood.  State v. George B., 258 Conn. 779, 794-96 (2001). 

Commentary

In State v. John F.M., 285 Conn. 528, 549 (2008), the Supreme Court interpreted this statute to apply "equally to both same sex and opposite sex sexual intercourse between individuals who are related within the degrees of kinship specified in § 46b-21."  The Court also discusses the evidentiary requirements of proving kinship.  Id., 534-44. On remand, the trial court properly instructed the jury that it could find that the defendant was the stepparent of the victim through testimonial admissions.  State v. John F.M., 110 Conn. App. 181, 186-87, cert. denied, 289 Conn. 948 (2008).

Sentence Enhancer
Section 53a-82a (b) provides an enhanced penalty if the victim is under 16 years of age.  The jury must find this fact proved beyond a reasonable doubt.  See Sentence Enhancers, Instruction 2.11-4.
 


 

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