Conn. Crim. Jury Instr. 7.1-13

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

13-47, § 3, changed the term “mentally defective” to “impaired because of mental disability

or disease” and modified the definition of “physically helpless.”

For the instruction for crimes committed before October 1, 2013, see Instruction 7.1-13

(archived).

The state has the burden of proving beyond a reasonable doubt that the defendant committed

each of the elements of the crime of <insert specific offense> as I have defined them for you. If

you are satisfied that the state has proved these elements beyond a reasonable doubt, you must

still consider whether the defendant has proved (his/her) affirmative defense.

<Insert Affirmative Defense, Instruction 2.9-1.>

A. Affirmative defense under § 53a-67 (a):

The statute defining this defense provides as follows:

in any prosecution for <insert specific offense> based on the complainant’s being

impaired because of mental disability or disease, mentally incapacitated or physically

helpless, it shall be an affirmative defense that the defendant at the time (he/she)

engaged in the conduct constituting the offense, did not know of such condition of the

complainant.

Conclusion

<Substitute for the concluding paragraph in the offense instruction.> 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 and not consider (his/her) affirmative defense.

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

of <insert specific offense>, then you shall consider the defendant’s affirmative defense. If you

unanimously find that the defendant has proved by a preponderance of the evidence that (he/she)

did not know at the time of the offense that the complainant was (impaired because of mental

disability or disease / mentally incapacitated / physically helpless), then you shall find the

defendant not guilty. If you unanimously find that the defendant has not proved (his/her)

affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.

B. Affirmative defense under § 53a-67 (b):

Note: This defense does not apply to §§ 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a, 53a-72b.

It thus applies only to fourth degree sexual assault (§ 53a-73a).

The statute defining this defense provides as follows:

in any prosecution for <insert specific offense> it shall be an affirmative defense that

the defendant and the complainant were, at the time of the alleged offense, living

together by mutual consent in a relationship of cohabitation, regardless of the legal

status of their relationship.

The defendant claims that (he/she) and the complainant were, at the time of the alleged offense,

living together by mutual consent in the relationship of cohabitation. “Cohabitation” means

actually living together by mutual consent in a relationship of cohabitation, regardless of the

legal status of their relationship. Simply living together is not sufficient. The relationship of

cohabitation includes all of the many facets of married life in addition to sexual relations. There

must be a mutual assumption of the marital rights, duties, and obligations that are usually

manifested by married people.

Conclusion

<Substitute for the concluding paragraph in the offense instruction.> 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 and not consider (his/her) affirmative defense.

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

of <insert specific offense>, then you shall consider the defendant’s affirmative defense. If you

unanimously find that the defendant has proved by a preponderance of the evidence that the

defendant and the complainant were living together by mutual consent in a relationship of

cohabitation, then you shall find the defendant not guilty. If you unanimously find that the

defendant has not proved (his/her) affirmative defense by a preponderance of the evidence, then

you shall find the defendant guilty.

1 This definition of cohabitation is intended to include a civil union. See State v. Arroyo, 181

Conn. 426, 432-33 (1980); State v. Cayoutte, 25 Conn. App. 384, 391 (1991).