Conn. Crim. Jury Instr. 7.1

“The state once had the burden of proving that the victim had earnestly resisted sexual

intercourse. . . . The revision [made by Public Acts 1975, No. 75-619] altered the rape statute by

deleting the element of ‘forcible compulsion,’ and its concomitant meaning of ‘physical force

that overcomes earnest resistance.’ . . . The statute no longer requires that the state prove that

physical force overcame earnest resistance, which was used in the past as a prerequisite to

proving nonconsensual carnal knowledge by force. . . . Whereas forcible compulsion was once

proved by demonstrating that force had overcome resistance, the state is now required to prove

that it was the use of force or its threat which caused the victim to engage in sexual intercourse,

and does not by its express language require that resistance be proven.” State v. Mackor, 11

Conn. App. 316, 321-22 (1987). “Proof of resistance was required in the past as a mode of

proving that the intercourse was nonconsensual. Under the present statute, the lack of consent is

subsumed by proof of the use of force or the threat of the use of force.” Id., 323. “Nonconsent is

not an element of the crime of General Statutes § 53a-70 (a), but is embodied within the proof

required of the use of force or the threat of the use of force.” Id.; see also State v. Griffin, 97

Conn. 169, 186, cert. denied, 280 Conn. 925 (2006); State v. White, 55 Conn. App. 412, 418-21,

cert. denied, 252 Conn. 908 (1999).

Consent, often raised as a defense, is more exactly a denial of the element of compulsion.

“It is likely that juries in considering the defense of consent in sexual assault cases, though

visualizing the issue in terms of actual consent by the complainant, have reached their verdicts

on the basis of inferences that a reasonable person would draw from the conduct of the

complainant and the defendant under the surrounding circumstances. It is doubtful that jurors

would ever convict a defendant who had in their view acted in reasonable reliance upon words or

conduct of the complainant indicating consent, even though there had been some concealed

reluctance on her part. If a defendant were concerned about such a possibility, however, he

would be entitled, once the issue is raised, to request a jury instruction that the state must prove

beyond a reasonable doubt that the conduct of the complainant would not have justified a

reasonable belief that she had consented.” State v. Smith, 210 Conn. 132, 141 (1989). The

Supreme Court clarified its holding in Smith in Efstathiadis v. Holder, 317 Conn. 482 (2015),

stating that the Smith holding was intended to apply the criminal negligence standard to § 53a-70

(a) (1). Id., 496. This level of mens rea also applies to § 53a-73 (a) (2) because “they are related

statutes designed to address the same type of conduct.” Id., 494.

If the force used or threatened to be used in the course of committing sexual assault in the

first and third degrees is sufficient to compel the victim to engage in sexual intercourse or to

submit to sexual contact, then the lack of consent is implicit. State v. Jackson, 30 Conn. App.

281, 288-89, cert. denied, 225 Conn. 916 (1993); State v. Clinkscales, 21 Conn. App. 411, 419,

cert. denied, 215 Conn. 815 (1990).

If a person initially consents to sexual intercourse, but then withdraws that consent and is

compelled to continue, then it is sexual assault in the first degree. State v. Siering, 35 Conn.

App. 173, 178-85 (supplemental instruction on withdrawal of consent was proper statement of

law), cert. denied, 231 Conn. 914 (1994).

“Although it is true that typically in cases in which force has been proven, the evidence

demonstrated either violence or some other form of physical coercion, we have consistently held

that one also may be guilty of sexual assault in the first degree if one uses one’s physical size or

strength to threaten another to submit to sexual intercourse and that such threat may be expressed

or implied.” (Emphasis in original.) State v. Mahon, 97 Conn. App. 503, 512, cert. denied, 280

Conn. 930 (2006); see also State v. Davis, 61 Conn. App. 621, 638-39 (quoting court’s

instruction distinguishing between express and implied threats), cert. denied, 255 Conn. 951

(2001). In State v. Gagnon, 18 Conn. App. 694, 699, cert. denied, 213 Conn. 805 (1989),

coercion was found when the defendant pretended to be a police officer, causing the victim to

stop her vehicle. “Such coercion was intended to and did in fact place the victim in a position

wherein she was compelled to submit to sexual contact by the defendant.” Id.

It is improper to instruct regarding the “use of force . . . or the threat of use of force”

when the defendant is charged only with the “use of force” and no evidence is presented

regarding the “threat of the use of force.” State v. Chapman, 229 Conn. 529, 536-37 (1994).

On the use of force, compare State v. Hufford, 205 Conn. 386, 393 (1987) (because

victim was physically helpless due to medical condition, it required no force to remove her

clothes), and State v. Mahon, supra, 97 Conn. App. 511 (removal of the victim’s clothing was

sufficient evidence of the use of force, due to defendant’s show of superior strength).

Intent

Sexual assault in the first and second degrees, which require sexual intercourse, are

general intent crimes. See State v. Pierson, 201 Conn. 211, 216 (1986). “[N]o special

instructions as to intent are required for a general intent crime unless something in the evidence

presented indicates that the defendant acted involuntarily, without sufficient mental capacity,

under duress or while entrapped.” (Internal quotation marks omitted.) State v. Jackson, 30

Conn. App. 281, 291, cert. denied, 225 Conn. 916 (1993).

Sexual assault in the third and fourth degrees are specific intent crimes. “The specific

intent for sexual assault in the third degree is derived from General Statutes § 53a-65 (3), which

provides in relevant part: ‘Sexual contact’ means any contact with the intimate parts of a person .

. . for the purpose of sexual gratification of the actor. . . .” State v. Faria, 254 Conn. 613, 636

n.24 (2000).

“Because not every person who commits sexual assault has intercourse as their ultimate

objective, the legislature in the penal code has distinguished between sexual assault with sexual

intercourse as its goal and sexual assault with sexual contact as its goal.” State v. Milardo, 224

Conn. 397, 405 (1993) (sufficient evidence of intent to compel sexual intercourse). “[T]he state

had only to prove that the defendant took a substantial step in a course of conduct that was

planned to culminate in intentionally compelling another person to engage in sexual intercourse.

Thus, the charge on the element of intent necessary for attempted sexual assault in the first

degree need not be more specific than instructing, as the trial court did here, that the state must

prove that the defendant intended to compel sexual intercourse, regardless of which of the listed

acts in the statutory definition might ultimately have been performed had not the defendant’s

attack on the victim been interrupted.” Id., 413.

Lesser included offenses

Sexual assault in the second degree in violation of § 53a-71 (a) (2) is not a lesser included

offense of sexual assault in the first degree because that subsection of second degree sexual

assault has an age requirement that first degree sexual assault does not. State v. Michael A., 99

Conn. App. 251, 256-63 (2007).

Sexual assault in the third degree is not a lesser included offense of sexual assault in the

first degree, because third degree requires proof of the additional element that the compelled

sexual contact was for the purpose of either the sexual gratification of the actor or the

humiliation or degradation of the victim. State v. Milardo, 224 Conn. 397, 417 (1993); State v.

Mezrioui, 26 Conn. App. 395, 405-406, cert. denied, 224 Conn. 909 (1992). For the same

reason, sexual assault in the fourth degree is not a lesser included offense of sexual assault in the

second degree. State v. Sirimanochanh, 26 Conn. App. 625, 637 (1992), rev’d on other grounds,

224 Conn. 656 (1993).

Separate offenses

Two acts of penetration constitute two separate offenses and do not violate double

jeopardy protection. The statute punishes “the act of forcible penetration itself, and, therefore,

each penetration by the defendant constituted a separate and distinct repetition of the same

prohibited act, irrespective of the brief period of time separating them.” State v. Scott, 270 Conn.

92, 100 (2004), cert. denied, 544 U.S. 987, 127 S. Ct. 1861, 161 L. Ed. 2d 746 (2005); see also

State v. Antonio A., 90 Conn. App. 286, 295 (two acts of digital penetration), cert. denied, 275

Conn. 926 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006).

Defenses

The affirmative defense of fraudulent misrepresentation is not available under the statute

prohibiting sexual intercourse between a person who is between the ages of thirteen and fifteen

and a person who is at least two years older. State v. Blake, 63 Conn. App. 536, 539-42

(reviewing statutory history), cert. denied, 257 Conn. 911 (2001); see also State v. Plude, 30

Conn. App. 527, 539-41 (mistake of age is no defense), cert. denied, 225 Conn. 923 (1993).

Confidentiality of the complainant’s name and address

General Statutes § 54-86e provides that the name, address and other identifying

information of a victim of sexual assault are confidential. These instructions refer only to “the

complainant.” The court may use initials or some other identifier when necessary to refer to the

complainant.