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Criminal Jury Instructions  

Criminal Jury Instructions

 

SEXUAL INTERCOURSE

Definition 1:  "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 may be committed by an object manipulated by the actor into the genital or anal opening of the complainant's body.

Source:  General Statutes 53a-65 (2) (applies to Part VI:  Sex Offenses, 53a-67 -- 53a-90a).

Commentary:  The definition of sexual intercourse includes four alternative means of performing sexual intercourse that are not conceptually distinct.  See State v. Anderson, 211 Conn. 18, 35 (1989) ("[t]he several ways in which sexual intercourse may be committed under General Statutes 53a-65 (2) are only one conceptual offense"); see also State v. Griffin, 97 Conn. App. 169, 181-85, cert. denied, 280 Conn. 925 (2006) (the court's instruction that sexual intercourse included vaginal intercourse or cunnilingus did not constitute a non-unanimous instruction of two conceptually distinct alternatives).

"[T]he phrase 'penetration, however slight,' evinced an intent to incorporate, into our statutory law, the common-law least penetration doctrine."  State v. Albert, 252 Conn. 795, 804 (2000) (concluding that penetration, however slight, of the external genitalia is sufficient to constitute vaginal intercourse).  Albert has a lengthy discussion of the legislative history of this definition. See also State v. David N.J., 301 Conn. 122, 154-60 (2011) (supplemental instruction on the meaning of penetration).

In State v. Scott, 256 Conn. 517, 529 (2001), the Supreme Court held that the trial court's failure to instruct the jury that penetration is an element of the crime of sexual assault in the first degree by fellatio deprived the defendant of a fair trial.  The court concluded that "the penetration requirement is met, for purposes of first degree sexual assault by fellatio, when a perpetrator forcibly inserts his penis into the victim's mouth. . . . The act of licking a penis, by contrast, does not satisfy the penetration element of 53a-70 and 53a-65 (2)."  Id., 534-35.

The Court concluded in State v. Kish, 186 Conn. 757, 762-66 (1982), that the definition of sexual intercourse specifically omits cunnilingus when discussing penetration because penetration is not an element of the crime when cunnilingus is charged.

The limitation specified in the definition that it only applies to "persons not married to each other" incorporates the common-law marriage exemption to a charge of rape.  See State v. Scott, 11 Conn. App. 102, 112-19, cert. denied, 204 Conn. 811 (1987).  Note that General Statutes 53a-70b, Sexual assault in spousal or cohabiting relationship, contains its own definition of sexual intercourse, which omits this limitation. 

Definition 2:  "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. 

Source:  General Statutes 53a-193 (9) (applies to Part XX:  Obscenity and Related Offenses, 53a-194 -- 53a-210). 

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