Conn. Crim. Jury Instr. 7.1-1

The defendant is charged [in count__] with sexual assault in the first degree. The statute

defining this offense reads in pertinent part as follows:

a person is guilty of sexual assault in the first degree when such person compels

another person to engage in sexual intercourse <insert one or both1 of the following:>

• by the use of force against such other person or a third person, [or]

• by the threat of the use of force against such other person or against a third person which

reasonably causes such person to fear physical injury to such person or a third person.

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.

2 “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 other

person’s body.

“Compelled” has its ordinary meaning. It means that the complainant did not consent and that

the defendant must have required the complainant to engage in sexual intercourse against

(his/her) will. If you find that the complainant consented to the act of sexual intercourse, you

cannot find that the act was compelled. Such consent must have been actual and not simply

acquiescence brought about by force, by fear, or by shock. The act must have been truly

voluntary. Consent may be express or you may find that it is implied from the circumstances

that you find existed. Whether there was consent is a question of fact for you to determine. The

defendant has no burden to prove consent. The state must prove compulsion.

The defendant may not be convicted of sexual assault if the words or conduct of the complainant

under all the circumstances would justify a reasonable belief that (he/she) had consented.

Whether the complainant should be found to have consented depends upon how (his/her)

behavior would have been viewed by a reasonable person under the surrounding circumstances.

The crux of the inquiry on the issue of consent is not the subjective state of mind of the

complainant, but rather, (his/her) manifestations of consent or lack of consent by words or

conduct as reasonably construed by a reasonable person in the same circumstances as the

defendant.

The state claims that the complainant did not consent, and that the defendant intentionally

disregarded the complainant’s lack of consent to sexual intercourse and compelled (him/her) to

submit to sexual intercourse by force. This imposes a burden upon the state to prove beyond a

reasonable doubt that under the existing circumstances, the defendant failed to perceive a

substantial and unjustifiable risk that the complainant had not consented. The failure to perceive

a lack of consent, if proven, must be of such nature and degree that the failure to perceive it

constitutes a gross deviation from the standard of care that a reasonable person would observe in

the situation as it then existed. A gross deviation is a great or substantial deviation, not just a

slight or moderate deviation. There must be a great or substantial difference between, on the one

hand, the defendant’s conduct in failing to perceive a substantial and unjustifiable risk, and, on

the other hand, what a reasonable person would have done under the circumstances.

Whether the risk is substantial and unjustifiable is a question of fact for you to determine under

the circumstances.

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:>

• the use of force against the complainant or another party, [or]

• the threat of the use of force against the complainant or another party which reasonably

caused the complainant to fear physical injury to (himself/herself) or another party.

“Use of force” means the use of a dangerous instrument or the use of actual physical force or

violence or superior physical strength against another person. <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 other person 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/another

person). “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 find 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.

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant compelled

another person to engage in sexual intercourse, and 2) that this was accomplished by the (the use

of force against the other person or against a third person / or the threat of the use of force

against the other person or against a third person which reasonably causes such person to fear

physical injury to such person or a third person).

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements

of the crime of sexual assault in the first 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.

1 In State v. Chapman, 229 Conn. 529, 536-37 (1994), the court held that it was improper to

instruct the jury regarding the “use of force . . . or the threat of use of force,” when the defendant

was charged only with the “use of force” and no evidence had been presented regarding the

“threat of the use of force.”

2 It is not necessary that the defendant be the one to have engaged in intercourse with the

complainant. State v. Warren, 14 Conn. App. 688, 694, cert. denied, 209 Conn. 805 (1988), cert.

denied, 488 U.S. 1030, 109 S. Ct. 839, 102 L. Ed. 2d 971 (1989).

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).