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2C:34-5(b) model jury charge

DISEASED PERSON COMMITTING AN ACT OF SEXUAL PENETRATION

N.J.S.A.2C:34-5(b)model jury charge

(Defendant) is charged with committing an act of sexual penetration while infected with a specific virus.The indictment charging this offense reads:

[READ INDICTMENT]

The statute prohibiting this conduct provides, in pertinent part:

A person is guilty of a crime [if he/she], knowing that he or she is infected with human immune deficiency virus (HIV) or any other related virus identified as a probablecausative agent of acquired immune deficiency syndrome (AIDS), commits an act of sexual penetration without the informed consent of the other person.

For (defendant) to be guilty of this crime, the State must prove each of the following elements beyond a reasonable doubt:

First, that, at the time charged in the indictment, (defendant) was infected with [CHOOSE AS APPROPRIATE:human immune deficiency virus (HIV) or any other related virus identified as a probable causative agent of acquired immune deficiency syndrome (AIDS)].

Second, that, at that time, (defendant) knew thathe/shewas so infected;

Third, that, at the time, (defendant) committed an act of sexual penetration with (another person);

Fourth, that (that other person) did not provide (defendant) with his/her informed consent.

The first element that the State must prove beyond a reasonable doubt is that (defendant) was infected with human immune deficiency virus or any other related virus identified as a probable causative agent of acquired immune deficiency syndrome.

The second element that the State must prove beyond a reasonable doubt is that (defendant) knew thathe/shewas so infected.A person acts knowingly with respect to the nature ofhis/herconduct or the attendant circumstances ifhe/sheis aware thathis/herconduct is of that nature, or that such circumstances exist, orhe/sheis aware of a high probability of their existence.A person acts knowingly with respect to a result ofhis/herconduct ifhe/sheis aware that it is practically certain thathis/herconduct will cause such a result.Knowing, with knowledge, and other equivalent terms have the same meaning.

Knowing is a state of mind.It cannot be seen.Often, it can be proved only by inference drawn from conduct, words, and acts, as well as surrounding circumstances.Therefore, it is not necessary that the State present testimony that (defendant) said thathe/shehad a certain state of mind whenhe/shedid something.It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of (defendants) acts and conduct, from all thathe/shesaid and did at the particular time and place, and from all surrounding circumstances.

The third element that the State must prove beyond a reasonable doubt is that (defendant) engaged in sexual penetration with another person.Sexual penetration means [SELECT APPROPRIATE TERMS:vaginal intercourse, cunnilingus[1], fellatio[2], anal intercourse, or the insertion of the hand, finger, or object into the anus or vagina by (defendant) [WHERE APPROPRIATE ADD:or athis/herinstruction]].Any amount of insertion, however slight, constitutes penetration; the depth of the insertion is not relevant.

The fourth element that the State must prove beyond a reasonable doubt is that (defendant) so acted without having the informed consent of the other person.Informed consent means the persons voluntary and knowing agreement to submit to an act of sexual penetration with a person having [the specified virus].The State must prove beyond a reasonable doubt that (the other person) was not informed of [the specified virus] with which (defendant) was infected.

If the State has proved each of these elements beyond a reasonable doubt, your verdict must be guilty of this charge. If, on the other hand, the State has failed to prove any of these elements beyond a reasonable doubt, your verdict must be not guilty.



[1]Cunnilingus, oral stimulation of the female sexual organ, is a form of sexual penetration even if one does not insert his/her tongue into the others vagina.

[2]Fellatio, oral stimulation of the male sexual organ, is a form of sexual penetration even if ones penis does not enter the others mouth.Placing the mouth of another person on the penis constitutes fellatio.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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