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Criminal Jury Instructions

Criminal Jury Instructions Home

7.7-4  Possessing Child Pornography -- 53a-196d, 53a-196e, and 53a-196f

Revised to May 20, 2011

Note:  The degree of the offense depends on the number of images.  See 53a-196d (first degree: 50 or more images or one or more images depicting infliction of serious physical injury); 53a-196e (second degree: more than 20 images but fewer than 50); 53a-196f (third degree: fewer than 20 images).

The defendant is charged [in count __] with possessing child pornography in the (first / second / third) degree.  The statute defining this offense reads in pertinent part as follows: 

a person is guilty of possessing child pornography in the (first / second / third) degree when such person knowingly possesses (fifty or more / twenty or more but fewer than fifty / fewer than twenty / one or more) visual depictions of child pornography [that depict the infliction or threatened infliction of serious physical injury].

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Possession
The first element is that the defendant possessed child pornography.

"Child pornography" is any visual depiction, including any photograph, film, videotape, picture or computer-generated image or picture, whether made or produced by electronic, mechanical or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a person under 16 years of age engaging in sexually explicit conduct, provided whether the subject of a visual depiction was a person under 16 years of age at the time the visual depiction was created is a question to be decided by the trier of fact.

"Sexually explicit conduct" means actual or simulated (A) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal physical contact, whether between persons of the same or opposite sex, or with an artificial genital, (B) bestiality, (C) masturbation, (D) sadistic or masochistic abuse, or (E) lascivious exhibition of the genitals or pubic area of any person.

"Sexual intercourse" means intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex or between a human and an animal, or with an artificial genital.  "Masturbation" means the real or simulated touching, rubbing or otherwise stimulating a person's own clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast, either by manual manipulation or with an artificial instrument.  "Sadistic or masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.  A "lascivious" exhibition of the genitals or pubic area is an exhibition that is lewd or lustful. 

Furthermore, the state must prove beyond a reasonable doubt that the person depicted was or is an actual, real person.  For example, a "virtual" or computer-generated image would not fall into this category.

The defendant must possess the child pornography; that means (he/she) must have physical possession of it or otherwise exercise dominion or control over it.  <See Possession, Instruction 2.11-1.>

Element 2 - Knowingly
The second element is that (he/she) knowingly possessed the child pornography knowingly.  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.>  The state must prove that the defendant was aware of the nature and content of the materials.

Element 3 - Number of depictions
The third element is that the defendant possessed (fifty or more / twenty or more but fewer than fifty / fewer than twenty / one or more) visual depictions of child pornography [that depict the infliction or threatened infliction of serious physical injury].1  A "visual depiction" includes undeveloped film and videotape and information of any kind in any form, including computer software, that is capable of conversion into a visual image and includes encrypted data.  It does not matter whether the visual depictions are different images or multiple copies of the same image.2 

[Affirmative Defense3
The statute defining this offense also defines an affirmative defense, which the defendant has raised. <See Affirmative Defense, Instruction 2.9-1.>2 

The defendant claims that (his/her) acts constituted a violation of Possessing or Transmitting Child Pornography by Minor rather than Possessing Child Pornography. That offense, while still a criminal offense, subjects a person to a lesser penalty. The elements of that offense are refer to Possessing or Transmitting Child Pornography by Minor, Instruction 7.7-6. 

Conclusion

[<If defendant has not raised the affirmative defense:>
In summary, the state must prove beyond a reasonable doubt that 1) the defendant possessed child pornography, 2) (he/she) was aware of the nature and contents of the material, and 3) it consisted of (fifty or more / twenty or more but fewer than fifty / fewer than twenty / one or more) visual depictions [that depict the infliction or threatened infliction of serious physical injury].

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of possessing child pornography in the (first / second / 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.]

[<If defendant has raised the affirmative defense:>
If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of possessing child pornography, you shall then find the defendant not guilty and not consider the defendant's affirmative defense.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense. If you unanimously find that the defendant has proved (his/her) defense by a preponderance of the evidence, then you shall find the defendant not guilty. If you unanimously find that the defendant has not proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.]
______________________________________________________

1 Public Act No. 10-191, 2-4, added this additional possibility for first degree possession, effective October 1, 2010.
 

2 See State v. Sorabella, 277 Conn. 155, 204-206, cert. denied, 549 U.S. 821, 127 S.Ct. 131, 166 L.Ed.2d 36 (2006).
 

3 Public Act No. 10-191, 2, 3, and 4 added the affirmative defense, effective October 1, 2010.
 


 

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