7.1-6 Sexual Assault in Spousal or Cohabiting Relationship -- § 53a-70b
Revised to April 23, 2010
The defendant is charged [in count __] with sexual assault in a spousal or cohabiting relationship. The statute defining this offense reads in pertinent part as follows:
no spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by <insert one or both1 of the following:>
the use of force against such other spouse or cohabitor, [or]
the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear 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 - Sexual intercourse
The first element is that the defendant compelled the complainant to engage in sexual intercourse. "Sexual intercourse" means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. 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.2
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]
the threat of the use of force against the complainant which reasonably caused the complainant to fear physical injury to (himself / herself ).
"Use of force" means the use of a dangerous instrument or the use of actual physical force or violence or superior physical strength against the complainant. <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 complainant 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). "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 finds 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
The third element is that the complainant was the (spouse / cohabitor) of the defendant. <Insert appropriate definition:>
"Spouse" means a husband or wife.
"Cohabitor" is any person actually living with another person, both of whom have mutually assumed the rights, duties and obligations that are usually manifested by married people, including but not necessarily dependent on sexual relations.5
In summary, the state must prove beyond a reasonable doubt that 1) the defendant compelled the complainant to engage in sexual intercourse, 2) (he/she) did so through the (use / threatened use) of force, and 3) the defendant and the complainant were at the time (in a spousal relationship / cohabiting).
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of sexual
assault in a (spousal / cohabiting) relationship, 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.
1 In State v. Chapman, 229 Conn. 529, 536-37 (1994), the court held that it was improper to instruct regarding the "use of force . . . or the threat of the use of force," when the defendant was charged only with ''use of force'' and no evidence had been presented regarding "threat of use of force."
2 The definition of "sexual intercourse" in General Statutes § 53a-70b (a) is identical to the definition in § 53a-65 (2), except that it does not limit it to persons who are not married to one another.
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).
5 This definition of cohabitor is intended to include the parties to a civil union. See State v. Arroyo, 181 Conn. 426, 432-33 (1980); State v. Cayoutte, 25 Conn. App. 384, 391 (1991).
It is not improper to instruct the defendant under both § 53a-70 and § 53a-70b when there is a factual issue as to whether the defendant and the victim were cohabiting. State v. Suggs, 209 Conn. 733, 741-50 (1989).
General Statutes § 54-86e, which
protects the identity of a victim of a sexual assault, does not apply to this