Conn. Crim. Jury Instr. 7.7-4

Note: The degree of the offense depends on the number of images. See § 53a-196d (first

degree: 50 or more images or one or more images depicting infliction of serious physical

injury); § 53a-196e (second degree: 20 or more images but fewer than 50); § 53a-196f (third

degree: fewer than 20 images).

The defendant is charged [in count__] with possessing child sexual abuse material in the (first /

second / third) degree. The statute defining this offense reads in pertinent part as follows:

a person is guilty of possessing child sexual abuse material in the (first / second /

third) degree when such person knowingly possesses (fifty or more / twenty or more

but fewer than fifty / fewer than twenty / one or more) visual depictions of child

sexual abuse material [that depict the infliction or threatened infliction of serious

physical injury].

For you to find the defendant guilty of this charge, the state must prove the following elements

beyond a reasonable doubt:

Element 1 - Possession

The first element is that the defendant possessed child sexual abuse material.

“Child sexual abuse material” is any visual depiction, including any photograph, film, videotape,

picture or computer-generated image or picture, whether made or produced by electronic, digital,

mechanical or other means, of sexually explicit conduct, where the production of such visual

depiction involves the use of a person under 16 years of age engaging in sexually explicit

conduct, provided whether the subject of a visual depiction was a person under 16 years of age at

the time the visual depiction was created is a question to be decided by the trier of fact.

A “computer-generated image” is an image of a real child under the age of 16 that has been

digitally captured, stored, altered, and/or enhanced.

“Sexually explicit conduct” means actual or simulated (A) sexual intercourse, including

genital-genital, oral-genital, anal-genital or oral-anal physical contact, whether between persons

of the same or opposite sex, or with an artificial genital, (B) bestiality, (C) masturbation, (D)

sadistic or masochistic abuse, or (E) lascivious exhibition of the genitals or pubic area of any

person.

“Sexual intercourse” means intercourse, real or simulated, whether genital-genital, oral-genital,

anal-genital or oral-anal, whether between persons of the same or opposite sex or between a

human and an animal, or with an artificial genital. “Masturbation” means the real or simulated

touching, rubbing or otherwise stimulating a person’s own clothed or unclothed genitals, pubic

area, buttocks, or, if the person is female, breast, either by manual manipulation or with an

artificial instrument. “Sadistic or masochistic abuse” means flagellation or torture by or upon a

person clad in undergarments, a mask or bizarre costume, or the condition of being fettered,

bound or otherwise physically restrained on the part of one so clothed. An image depicts the use

of a child in a “lascivious exhibition” when the child’s genitals or pubic area is displayed in a

sexual manner.2

Furthermore, the state must prove beyond a reasonable doubt that the person depicted was or is

an actual, real person.3

The defendant must possess the child sexual abuse material; that means (he/she) must have

physical possession of it or otherwise exercise dominion or control over it. <See Possession,

Instruction 2.11-1.>

Element 2 - Knowingly

The second element is that (he/she) possessed the child sexual abuse material knowingly. A

person acts “knowingly” with respect to conduct or to a circumstance when (he/she) is aware that

(his/her) conduct is of such nature or that such circumstance exists. <See Knowledge, Instruction

2.3-3.> The state must prove that the defendant was aware of the nature and content of the

materials.

Element 3 - Number of depictions

The third element is that the defendant possessed <insert as appropriate according to the

allegations and evidence>:4

<For first degree any one or a combination of the following:>

• Fifty or more still images of child sexual abuse material,

• One or more still images of child sexual abuse material that depict the infliction or

threatened infliction of serious physical injury.

• Any single moving image with either one child engaging in more than one sexually

explicit act or more than one child engaging in one sexually explicit act.

• More than one moving picture, in any format, depicting a single act of sexually explicit

conduct by one child.

<For second degree any one or a combination of the following:>

• Twenty or more, but fewer than 50, still images of child sexual abuse material.

• A moving image of 20 or more frames in any format, depicting a single act of sexually

explicit conduct by one child.

<For third degree any one or a combination of the following:>

• Fewer than 20 still images of child sexual abuse material.

• A moving picture of fewer than 20 frames depicting a single act of sexually explicit

conduct by one child.

A “visual depiction” includes undeveloped film and videotape and information of any kind in

any form, including computer software, that is capable of conversion into a visual image and

includes encrypted data. It does not matter whether the visual depictions are different images or

multiple copies of the same image.5

[Affirmative Defense6

The statute defining this offense also defines an affirmative defense, which the defendant has

raised. <See Affirmative Defense, Instruction 2.9-1.>

The defendant claims that (his/her) acts constituted a violation of Possessing or Transmitting

Child Sexual Abuse Material by a Minor rather than Possessing Child Sexual Abuse Material.

That offense, while still a criminal offense, subjects a person to a lesser penalty. The elements of

that offense are <refer to Possessing or Transmitting Child Sexual Abuse Material by Minor,

Instruction 7.7-6>.

Conclusion

[<If defendant has not raised the affirmative defense:>

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

child sexual abuse material, 2) (he/she) was aware of the nature and contents of the material, and

3) it consisted of (fifty or more / twenty or more but fewer than fifty / fewer than twenty / one or

more) visual depictions [that depict the infliction or threatened infliction of serious physical

injury].

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

of the crime of possessing child sexual abuse material in the (first / second / third) 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.]

[<If defendant has raised the affirmative defense:>

If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the

elements of the crime of possessing child sexual abuse material, you shall then find the defendant

not guilty and not consider the defendant’s affirmative defense.

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

elements, then you shall consider the defendant’s affirmative defense. If you unanimously find

that the defendant has proved (his/her) defense by a preponderance of the evidence, 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 The depicted behaviors listed in items (A) through (E) do not constitute separate elements of

the crime, but rather, are different ways to satisfy the single element of possession. State v.

Inzitari, 351 Conn. 86, 110-11(2025). Accordingly, the jury does not need to agree as to what

behavior(s) a particular image depicts, and a specific unanimity instruction in this regard is not

required. Id., 112. Similarly, when a defendant is charged with possessing the quantity of

images necessary to establish a specific degree of possession of child sexual abuse material, and

a greater number of images are entered into evidence, the jury does not have to agree on which

images, taken together, comprise the statutorily required quantity. Id. (“[a]lthough the jury was

required to be unanimous on the bottom line—that the defendant possessed a minimum of fifty

visual depictions of child [sexual abuse material]—it need not have been unanimous as to the

exact fifty images or category of sexually explicit conduct depicted in those images”).

2 When the materials at issue are alleged to include a “lascivious exhibition of the genitals or

pubic area of any person” as contemplated by General Statutes § 53a-193 (14) (E), the court may

provide the following factors for the jury’s consideration if it concludes it to be helpful: (1)

whether the focal point of the visual depiction is on the child’s genitalia or pubic area, (2)

whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally

associated with sexual activity, (3) whether the child is depicted in an unnatural pose, or in

inappropriate attire, considering the age of the child, (4) whether the child is fully or partially

clothed, or nude, and (5) whether the visual depiction suggests sexual coyness or a willingness to

engage in sexual activity. State v. Inzitari, supra, 351 Conn. 95-96, 105-106 (approving use of

first five factors articulated in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d,

813 F.2d 1231, and aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert.

denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987), for evaluating whether a visual

image is a “lascivious exhibition of the genitals or pubic area” under federal child pornography

statutes). The jury also must be instructed that these factors “(1) are merely a guide, (2) are

nonexhaustive and that other considerations may be relevant to the determination of whether an

image depicts a lascivious exhibition, and (3) should not be applied in a rigid or mechanistic

manner.” Id., 106.

Regarding the fourth factor, the Supreme Court has “explained that nudity alone, even

when it comes to images of children, is not sufficient to constitute child [sexual abuse material] .

. . . That is because depictions of nudity, without more, constitute protected expression under the

first amendment. . . . This caveat ensures that persons are not penalized for viewing or possessing

otherwise innocuous nude photographs, a classic example of which is a family snapshot of a

child in a bathtub.” (Citations omitted; internal quotation marks omitted.) Id., 96-97.

A sixth factor identified in Dost, whether the visual depiction is intended or designed to

elicit a sexual response in the viewer, is not pertinent under Connecticut law and, therefore,

should not be considered by the jury. Id., 101.

3 In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240 (2002), the United States Supreme

Court held that a federal statute that prohibited possession of, inter alia, virtual child

pornography, i.e., that produced by computer without using any real children, was violative of

the first amendment. The definition of child sexual abuse material in Connecticut’s statutes; see

General Statutes § 53a-193 (13); contemplates only material created using real children and,

therefore, avoids this constitutional issue. See State v. Dore, 237 Conn. App. 594, 613-14, 614

n.21, cert. denied, 354 Conn. 923 (2026).

The Appellate Court in Dore, reiterating the Supreme Court’s holding in State v. Sorabella, 277

Conn. 155, 187-88, cert. denied, 549 U.S. 821 (2006), concluded that expert witness testimony is

not required to establish that a particular image depicts a real child. It noted that advances in

technology may one day require the use of expert testimony to aid the jury in determining if the

image depicts a real child, but until then “[j]uries are still capable of distinguishing between real

and virtual images; and admissibility remains within the province of the sound discretion of the

trial judge.” (Internal quotation marks omitted.) Id., 632.

4 Number 14-192, §§ 1-4, of the 2014 Public Acts amended the child sexual abuse material

statutes, effective October 1, 2014, to include moving images.

5 See State v. Sorabella, 277 Conn. 155, 204-206, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166

L. Ed. 2d 36 (2006).

6 Number 10-191, §§ 2, 3, and 4, of the 2010 Public Acts added the affirmative defense, effective

October 1, 2010.