Conn. Crim. Jury Instr. 7.1-11

Note: This instruction is for crimes committed on or after October 1, 2013. Public Act No.

13-47, § 3, modified the definition of “physically helpless.”

For the instruction for crimes committed before October 1, 2013, but after October 1, 2007,

see Instruction 7.1-11 (archived II).

For the instruction for crimes committed before October 1, 2007, see Instruction 7.1-11

(archived I).

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

defining this offense reads in pertinent part as follows:

a person is guilty of sexual assault in the fourth degree when such person subjects

another person to sexual contact and <insert appropriate subsection:>

• § 53a-73a (a) (1) (A): such other person is under thirteen years of age and the defendant

is more than two years older.

• § 53a-73a (a) (1) (B): such other person is thirteen years of age or older but under fifteen

years of age and the actor is more than three years older than such other person.

• § 53a-73a (a) (1) (C): such other person is physically helpless.

• § 53a-73a (a) (1) (D): such other person is less than eighteen years old and the actor is

such person’s guardian or otherwise responsible for the general supervision of such

person’s welfare.

• § 53a-73a (a) (1) (E): such other person is in custody of law or detained in a hospital or

other institution and the actor has supervisory or disciplinary authority over such person.

• § 53a-73a (a) (3): the sexual contact was with a dead human body.

• § 53a-73a (a) (4): the defendant was a psychotherapist and the complainant was (a

patient of the defendant and the sexual contact occurred during the psychotherapy session

/ a patient or former patient of the defendant and (he/she) was emotionally dependent

upon the defendant / a patient or former patient of the defendant and the sexual contact

occurred by means of therapeutic deception).

• § 53a-73a (a) (5): the defendant accomplished the sexual contact by means of a false

representation that the sexual intercourse was for a bona fide medical purpose by a health

care professional.

• § 53a-73a (a) (6): the defendant was a school employee and the complainant was a

student enrolled in a school in which the defendant worked or a school under the

jurisdiction of the local or regional board of education which employed the defendant.

• § 53a-73a (a) (7): the defendant (was a coach in an athletic activity / provided intensive,

ongoing instruction) and the complainant was a recipient of the (coaching / instruction)

from the defendant, and the complainant was (a secondary school student and received

the (coaching / instruction) in a secondary school setting / under eighteen years of age).

• § 53a-73a (a) (8): the defendant was twenty years of age or older and stood in a position

of power, authority or supervision over the complainant by virtue of the defendant’s

professional, legal, occupational or volunteer status and the complainant’s participation in

a program or activity, and the complainant was under eighteen years of age.

• § 53a-73a (a) (9): the complainant was placed or receiving services under the direction of

the Commissioner of Developmental Services in any public or private facility or program

and the defendant had supervisory or disciplinary authority over such other person.1

For you to find the defendant guilty of this charge, the state must prove beyond a reasonable

doubt the following elements:

Element 1 - Sexual contact

The first element is that the defendant subjected the complainant to sexual contact. “Sexual

contact” means any contact by the defendant with the intimate parts of the complainant or

contact of the intimate parts of the defendant with the complainant. [<For cases alleging

violations of § 53a-73a (a) (3):> “Sexual contact” means any contact with the intimate parts of a

dead human body, or any contact of the intimate parts of the actor with a dead human body.]

“Intimate parts” means the genital area or any substance emitted therefrom, groin, anus or any

substance emitted therefrom, inner thighs, buttocks or breasts. To constitute sexual contact there

must be an actual touching. There need not be, however, direct contact with the unclothed body

of the other person or the defendant. It is enough if the touching of the genital area, groin, anus,

inner thighs, buttocks or breast was through the other person’s clothing or the defendant’s

clothing.

Element 2 - Intent

The second element is that defendant had the specific intent to (obtain sexual gratification /

degrade or humiliate the complainant).

[<For cases alleging violations of § 53a-73a (a) (3):> The second element is that the defendant

had the specific intent to obtain sexual gratification.]

A person acts “intentionally” with respect to a result when (his/her) conscious objective is to

cause such result. <See Intent: Specific, Instruction 2.3-1.>

Element 3 - Additional factor

The third element is that, at the time of the offense, <insert as appropriate and tailor to the facts

of the case:>

• § 53a-73a (a) (1) (A): the complainant was under thirteen years of age and the defendant

was more than two years older.

• § 53a-73a (a) (1) (B): the complainant was thirteen years of age or older but under fifteen

years of age and the defendant was more than three years older.

• § 53a-73a (a) (1) (C): the complainant was physically helpless during all or part of the

sexual contact.

3 “Physically helpless” means that a person is either unconscious, or is for

any other reason physically unable to resist an act of sexual intercourse or sexual contact

or to communicate unwillingness to an act of sexual intercourse of sexual contact. That

is, the complainant was unable by reason of (his/her) physical condition to do anything

and was, therefore, incapable of consenting. The helplessness referred to is separate and

apart from any mental condition.

• § 53a-73a (a) (1) (D): the complainant was less than eighteen years old at the time this

offense was committed, and the defendant was (the complainant’s guardian / responsible

for the general supervision of the complainant’s welfare4).

• § 53a-73a (a) (1) (E): the complainant was in custody of law or detained in a hospital or

other institution and the defendant had supervisory or disciplinary authority over

(him/her).

• § 53a-73a (a) (3): the sexual contact was with a dead human body.

• § 53a-73a (a) (4): the defendant was a psychotherapist and the complainant was (a

patient of the defendant and the sexual contact occurred during the psychotherapy session

/ a patient or former patient of the defendant and (he/she) was emotionally dependent

upon the defendant / a patient or former patient of the defendant and the sexual contact

occurred by means of therapeutic deception).

<Include appropriate definitions:>

o “Psychotherapist” means a physician, psychologist, nurse, substance abuse counselor,

social worker, clergyman, marital and family therapist, mental health service

provider, hypnotist or other person, whether or not licensed or certified by the state,

who performs or purports to perform psychotherapy.

o “Patient” means an individual who consults a psychotherapist for purposes of

evaluation or treatment.

o “Psychotherapy” means the professional treatment, assessment or counseling of a

mental or emotional illness, symptom or condition.

o “Emotionally dependent” means that the nature of the patient’s or former patient’s

emotional condition and the nature of the treatment provided by the psychotherapist

are such that the patient or former patient is unable to withhold consent to sexual

contact by the psychotherapist.

o “Therapeutic deception” means a representation by a psychotherapist that sexual

contact by the psychotherapist is consistent with or part of the patient’s treatment.

• § 53a-73a (a) (5): the defendant accomplished the sexual contact by means of a false

representation that the sexual intercourse was for a bona fide medical purpose by a health

care professional.

• § 53a-73a (a) (6): the defendant was a school employee and the complainant was a

student enrolled in a school in which the defendant worked or a school under the

jurisdiction of the local or regional board of education which employed the defendant.

“School employee” means either a teacher, substitute teacher, school administrator,

school superintendent, guidance counselor, psychologist, social worker, nurse, physician,

school paraprofessional or coach employed by a local or regional board of education or a

private elementary, middle or high school or working in a public or private elementary,

middle or high school; or any other person who, in the performance of his or her duties,

has regular contact with students and who provides services to or on behalf of students

enrolled in a public elementary, middle or high school, pursuant to a contract with the

local or regional board of education or in a private elementary, middle or high school

pursuant to a contract with the supervisory agent of the private school.

• § 53a-73a (a) (7): the defendant (was a coach in an athletic activity / provided intensive,

ongoing instruction) and the complainant was a recipient of the (coaching / instruction)

from the defendant, and the complainant was (a secondary school student and received

the (coaching / instruction) in a secondary school setting / under eighteen years of age).

• § 53a-73a (a) (8): the defendant was twenty years of age or older and stood in a position

of power, authority or supervision over the complainant by virtue of the defendant’s

professional, legal, occupational or volunteer status and the complainant’s participation in

a program or activity, and the complainant was under eighteen years of age.

• § 53a-73a (a) (9): the complainant was placed or receiving services under the direction of

the Commissioner of Developmental Services in any public or private facility or program

and the defendant had supervisory or disciplinary authority over such other person.

Conclusion

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

complainant to sexual contact, 2) (he/she) specifically intended to (obtain sexual gratification /

degrade or humiliate the complainant), and 3) <insert additional factor>.

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 fourth 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 This alternative was added by Public Acts 2011, No. 11-113, § 2, effective October 1, 2011.

2 The intent element of this offense is derived from the definition of “sexual contact” in General

Statutes § 53a-65 (3). See State v. Faria, 254 Conn. 613, 636 n.24 (2000).

3 In State v. Davis, 180 Conn. App. 799, 808-10, cert. denied, 328 Conn. 941 (2018), the

Appellate Court, when construing identical language in General Statutes § 53a-71, rejected the

defendant’s claim that the physical helplessness element was unproven because the victim was

not physically helpless during the entire sexual assault.

4 For guidance on the question of whether a defendant is “otherwise responsible for the general

supervision of [a complainant’s] welfare,” see State v. Gary S., 345 Conn. 387, 399-406 (2022),

and the accompanying footnotes.

5 See General Statutes § 52-146q (a) (1).

6 For guidance on whether a defendant remained a “school employee” at the time of the charged

events, see State v. Russo, 221 Conn. App. 729, 743-44 (2023) (holding that state established

probable cause that defendant, who was assistant soccer coach, remained school employee after

conclusion of soccer season), cert. denied, 348 Conn. 938 (2024).