Instruction 6.206, Criminal Model Jury Instructions for Use in the District Court

ASSAULT TO INTIMIDATE

BASED ON RACE, COLOR, RELIGION, NATIONAL ORIGIN, SEXUAL

ORIENTATION GENDER IDENTITY, OR DISABILITY

G.L. c. 265, § 39(a)

The defendant is charged with having committed an assault with

the intent to intimidate a person because of that person’s (read all that

may apply based on the prosecution’s theory of the case: [race] [color] [national

origin] [sexual orientation] [gender identity] [disability] [religion]).

Attempted Battery

To prove the defendant guilty, the Commonwealth must prove

four things beyond a reasonable doubt:

First: the defendant intended to commit a battery upon [the alleged

victim] ;

Second: the defendant took some overt step toward

accomplishing that intent;

Third: the defendant came reasonably close to doing so; and

Fourth: the defendant intended to intimidate [the alleged victim]

because of that person’s [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion].

To prove the first element, the Commonwealth must prove that

the defendant intended to commit a battery. A battery is a touching

that is either likely to cause bodily harm to [the alleged victim] or is

offensive. A touching is offensive when it is without consent.

[The judge may continue here or choose to use the extended instruction on specific intent

in model instruction 3.120.]

A person’s intent is their purpose or objective. This requires

you to make a decision about the defendant’s state of mind at that

time. You may consider any evidence about the actions or words of

the defendant, and all of the surrounding circumstances, to help you

determine whether the defendant intended to commit a battery.

To prove the second element, the Commonwealth must prove

that the defendant took some overt step toward accomplishing that

intent. In other words, the defendant must take some demonstrable

action toward committing a battery. However, it is not necessary for

the Commonwealth to show that [the alleged victim] was put in fear or

was even aware of the attempted battery.

To prove the third element, the Commonwealth must prove that

the defendant came reasonably close to accomplishing a battery.

To prove the fourth element, the Commonwealth must prove

that, at the time of the assault, the defendant intended to intimidate

[the alleged victim] because of that person’s perceived or actual [race]

[color] [national origin] [sexual orientation] [gender identity]

[disability] [religion]. To intimidate means to make timid or fearful

with acts or words that would instill fear in a reasonable person.

While the Commonwealth must prove the defendant intended to

intimidate [the alleged victim] because of that person’s perceived or

actual [race] [color] [national origin] [sexual orientation] [gender

identity] [disability] [religion], it is not required to prove that the

defendant was successful in intimidating [the alleged victim].

See Commonwealth v. Perez, 460 Mass. 683, 703 (2011); Commonwealth v. Rivera, 76

Mass. App. Ct. 530, 535 (2010); Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 490-

491 (1998).

The perceived or actual [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion] of [the alleged victim]

need not be the only motivating factor, but it must be one of the

factors that led to the commission of the crime. In other words, the

assault and battery must be motivated at least in part by hatred, bias,

or prejudice due to the [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion] of [the alleged victim].

See Commonwealth v. Kelly, 470 Mass. 682, 690-691 (2015).

[The judge may continue here or choose to use the extended instruction on specific intent

in model instruction 3.120. If the Commonwealth is pursuing both theories, the judge

may avoid repetition by reminding jurors that the instruction on intent just given applies

equally here.]

The allegation that the defendant intended to intimidate [the

alleged victim] on this basis requires you to make a decision about the

defendant’s state of mind at that time. You may consider any

evidence about the actions or words of the defendant, and all of the

surrounding circumstances, to help you determine whether the

defendant intended to intimidate [the alleged victim] due to their [race]

[color] [national origin] [sexual orientation] [gender identity]

[disability] [religion].

Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 490 (1998).

Immediately Threatened Battery

The defendant is (also) charged with having committed an

assault by making an immediately threatened battery with the intent

to intimidate a person because of that person’s [race] [color] [national

origin] [sexual orientation] [gender identity] [disability] [religion].

To prove the defendant guilty, the Commonwealth must prove

three things beyond a reasonable doubt:

First: the defendant intended to put [the alleged victim] in fear of

an immediate battery;

Second: the defendant engaged in some conduct toward [the

alleged victim] which [the alleged victim] reasonably perceived as

immediately threatening a battery; and

Third: the defendant intended to intimidate [the alleged victim]

because of that person’s perceived or actual [race] [color] [national

origin] [sexual orientation] [gender identity] [disability] [religion].

To prove the first element, the Commonwealth must prove that

the defendant intended to put [the alleged victim] in fear of an imminent

battery. A battery is a touching that is either offensive or likely to

cause bodily harm to [the alleged victim] .

[The judge may continue here or choose to use the extended instruction on specific intent

in model instruction 3.120. If the Commonwealth is pursuing both theories, the judge

may avoid repetition by reminding jurors that the instruction on intent just given applies

equally here.]

A person’s intent is their purpose or objective. This requires

you to make a decision about the defendant’s state of mind at that

time. You may consider any evidence about the actions or words of

the defendant, and all of the surrounding circumstances, to help you

determine whether the defendant intended to commit a battery.

To prove the second element, the Commonwealth must prove

that the defendant engaged in some conduct toward [the alleged victim]

which [the alleged victim] reasonably perceived as immediately

threatening a battery. This requires you to consider any evidence

about what [the alleged victim] perceived and also whether that

perception was reasonable.

To prove the third element, the Commonwealth must prove that,

at the time of the assault, the defendant intended to intimidate [the

alleged victim] because of that person’s perceived or actual [race]

[color] [national origin] [sexual orientation] [gender identity]

[disability] [religion]. To intimidate means to make timid or fearful

with acts or words that would instill fear in a reasonable person.

While the Commonwealth must prove the defendant intended to

intimidate [the alleged victim] because of that person’s perceived or actual

[race] [color] [national origin] [sexual orientation] [gender identity]

[disability] [religion], it is not required to prove that the defendant was

successful in intimidating [the alleged victim].

See Commonwealth v. Perez, 460 Mass. 683, 703 (2011); Commonwealth v. Rivera, 76

Mass. App. Ct. 530, 535 (2010); Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 490-

491 (1998).

The perceived or actual [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion] of [the alleged victim]

need not be the only motivating factor, but it must be one of the

factors that led to the commission of the crime. In other words, the

assault and battery must be motivated at least in part by hatred, bias,

or prejudice due to the [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion] of [the alleged victim].

See Commonwealth v. Kelly, 470 Mass. 682, 690-691 (2015).

[The judge may continue here or choose to use the extended instruction on specific intent

in model instruction 3.120. If the Commonwealth is pursuing both theories, the judge

may avoid repetition by reminding jurors that the instruction on intent just given applies

equally here.]

The allegation that the defendant intended to intimidate [the

alleged victim] on this basis requires you to make a decision about the

defendant’s state of mind at that time. You may consider any

evidence about the actions or words of the defendant, and all of the

surrounding circumstances, to help you determine whether the

defendant intended to intimidate [the alleged victim] due to their [race]

[color] [national origin] [sexual orientation] [gender identity]

[disability] [religion].

Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 490 (1998).

SUPPLEMENTAL INSTRUCTIONS

1. Disability. The term “disability” means (a) a physical or

mental impairment which substantially limits one or more

major life activities of a person; (b) a record of having such

impairment; or (c) being regarded as having such

impairment.

The term “impairment” does not include current, illegal use of alcohol or a controlled

substance as defined in section one of chapter ninety-four C. See G.L. c. 265, § 39(a),

referring to G.L. c. 151B, § 1(17).

2. Gender identity. The term “gender identity” means a

person's gender-related identity, appearance or behavior,

whether or not that gender-related identity, appearance or

behavior is different from that traditionally associated with

the person's physiology or assigned sex at birth.

See G.L. c. 4, § 7 ¶ 59.

3. Sexual orientation. The term “sexual orientation” means

having an orientation for or being identified as having an

orientation for heterosexuality, bisexuality or

homosexuality.

See G.L. c. 112, § 275.

4. Race. Under the law, in the context of racial

discrimination, the term race refers to traits historically

associated with race, including, but not limited to, hair

texture, hair type, hair length and protective hairstyles,

such as braids, locks, twists, Bantu knots, hair coverings

and other formations.

See G.L. c. 4, § 7 ¶ 62, 63.

Conclusion

If the Commonwealth has proved all of the elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must find the defendant not guilty.