N.J. Model Criminal Jury Charge, N.J.S.A. 2C:22-1a(3)

Approved 2/6/12

DISTURBING/DESECRATING HUMAN REMAINS

(N.J.S.A. 2C:22-1a(3))

Count (INSERT) of the Indictment char ges the defendant with the crime of

disturbing/desecrating human rema ins. The statute on which this count of the Indictment is

based reads in pertinent part:

A person commits an offense if, he commits an act of (sexual

penetration) (sexual contact) upon human remains.

In order for you to find the defendant guilty of this offense, the State must prove each of

the following elements beyond a reasonable doubt:

(1) That the defendant committed an act of (sexual penetration) or (sexual contact).

(2) That the act of (sexual penetration) or (sexual contact) was upon human remains.

(3) That the defendant knew the act was being committed upon human remains.

(CHARGE IF ALLEGATION OF SEXUAL PENETRATION)1

The first element the State must prove beyond a reasonable doubt is that the defendant

committed an act of sexual penetration.

Here, the State alleges that defendant committed an act of sexual penetration by (describe

conduct alleged).

Sexual penetration means vaginal intercourse, cunnilingus, fellatio or anal intercourse or

insertion of the hand, finger or object into the anus or vagina by the actor. 2 The depth of

insertion shall not be relevant as to the question of commission of the crime.

The definition of “vaginal intercourse” is the penetration of the vagina, or [where

1 See Model Jury Charge (Criminal), Aggravated Sexual Assault, N.J.S.A. 2C:14-2a(1).

2 N.J.S.A. 2C:14-1(c) also references acts done at the actor’s instruction. This language

should be charged if it is alleged the acts of sexual penetration upon the human remains were

committed by a third party at the actor’s request or direction.

DISTURBING/DESECRATING HUMAN REMAINS

N.J.S.A. 2C:22-1a(3)

appropriate] of the space between the labia majora or outer lips of the vulva.3

The definition of “cunnilingus” is oral contact with the female sex organ.4

The definition of “fellatio” is oral contact with the male sexual organ.5

The definition of “anal intercourse” is penetration of any depth into the anus.6

The State must prove beyond a reasonable do ubt that defendant committed the act of

sexual penetration knowingly.

A person acts knowingly with re spect to the nature of his/her conduct or the attendant

circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist

or the person is aware of a high probability of their existence. A person acts knowingly with

respect to a result of the conduct if he/she is aware th at it is prac tically certain that the conduct

will cause a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.

Knowledge is a condition of th e mind. It cannot be seen. It can only be determined by

inferences from defendant’s conduct, words or acts. A state of mind is rarely susceptible of

direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the

State produce witnesses to testify that an accuse d said that he/she had a certain state of mind

when he/she did a particular thing. It is w ithin your power to find that such proof has been

3 State v. J.A. , 337 N.J. Super . 114 (App. Div. 2001). The Appellate Division upheld the

charge given by the trial court in that case which included the following language which can be

used if the circumstances of the specific case ar e appropriate: “This means that if you find from

all of the evidence presented beyond a reasonable doubt that there was [penile] penetration to the

outer area of the vaginal opening, what is commonl y referred to as the va ginal lips, that is

sufficient to establish penetration under the law.”

4 State v. Fraction, 206 N.J. Super . 532, 535-36 (App. Div. 1985), certif. denied, 104 N.J.

434 (1986). Penetration is not necessary for this act.

5 State in the Interest of S.M. , 284 N.J. Super . 611, 616-19 (App. Div. 1995). Penetration

is not necessary for this act.

6 State v. Gallagher , 286 N.J. Super. 1, 13 (App. Div. 1995), certif. denied, 146 N.J . 569

(1996).

DISTURBING/DESECRATING HUMAN REMAINS

N.J.S.A. 2C:22-1a(3)

furnished beyond a reasonable doubt by inferences wh ich m

ay arise from the nature of his/her

acts and conduct and from all he/she said and di d at the particular time and place and from all

surrounding circumstances established by the evidence.

(CHARGE IF ALLEGATION OF SEXUAL CONTACT)7

The first element the State must prove beyond a reasonable doubt is that the defendant

committed an act of sexual contact.

Here, the State alleges that defendant comm itted an act of sexual contact by (describe

conduct alleged).

Sexual contact means an intentional touching by the defendant, either directly or through

clothing, of the (intimate parts of the corpse) or (defendant's intimate parts) for the purpose of

degrading or humiliating (name of the corpse) or sexually arousing or gratifying defendant.

Intimate parts means [CHOOSE APPROPRIATE] (sexual organs)(genital area)(anal

area)(inner thigh)(groin)(buttock of a person)(breast of a person).

To find that defendant committed an act of sexual contact, you must find beyond a

reasonable doubt both that the touc hing was intentional and that it was done with the purpose of

degrading or humiliating (name of victim) or sexually arousing or gratifying the defendant.

Intentional means purposeful. A person acts purposely with respect to the nature of

his/her conduct or a result thereof if it is his/he r conscious object to enga ge in conduct of that

nature or to cause such a re sult. A person acts purposely with respect to the attendant

circumstances if he/she is aware of the existenc e of such circumstances or believes or hopes that

they exist.

Purpose is a condition of the mind that cannot be seen and that can be determined only by

7 See Model Jury Charge (Criminal), Criminal Sexual Contact.

DISTURBING/DESECRATING HUMAN REMAINS

N.J.S.A. 2C:22-1a(3)

inferences from conduct, words or acts. A state of m

ind is rarely susceptible of direct proof but

must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce

witnesses to testify that an accu sed said that he/she had a certa in state of mind when he/she

engaged in a particular act. It is within your pow er to find that such proof has been furnished

beyond a reasonable doubt by inference, which may arise from the nature of the defendant’s acts

and conduct, from all that he/she said and did at the particular time and place, and from all

surrounding circumstances.

[WHEN DEFENDANT IS CHARGED WI TH TOUCHING HIMSELF/HERSELF,

ADD THE FOLLOWING: The State must prove beyond a reasonable doubt that the defendant

knew a corpse was present. The State must pr ove beyond a reasonable doubt that the touching

would have been in the view of th e corpse if the corpse were alive. 8 The State is not required to

prove that (name of victim) act ually observed or witnessed the alleged sexual contact. Rather,

the State must prove that the alleged sexual contact could have occurred in the view of (name of

victim). “Field of vision” is not limited to the visual direction in which the alleged victim would

have been focused upon at the particular time wh en the alleged sexual contact is said to have

occurred. Field of vision includes the areas that (name of victim) would have been capable of

viewing.9 The State must prove beyond a reasonable doubt that (name of victim) was present.

A person acts knowingly with re spect to the nature of his/her conduct or the attendant

circumstances if he/she is aware that his conduct is of that nature, or that such circumstances

exist, or he/she is aware of a high probability of their existence. A person acts knowingly with

respect to a result of his/her conduct if he/she is aware that it is practica lly certain that his/her

8 State v. Zeidell, 154 N.J. 417 (1998).

9 State v. Breitweiser, 373 N.J. Super. 271, 276, 286-87 (App. Div. 2004).

DISTURBING/DESECRATING HUMAN REMAINS

N.J.S.A. 2C:22-1a(3)

conduct will cause such a result.10

Knowledge is a condition of the mind that can not be seen and that can be determined

only by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct

proof but must ordinarily be inferred from the fact s. Therefore, it is not necessary that the State

produce witnesses to testify that an accused said that he/she had a certain state of mind when

he/she engaged in a particular act. It is within your power to find that such proof has been

furnished beyond a reasonable doubt by inference, which may arise from the nature of the

defendant’s acts and conduct, from all that he/she said and did at the particular time and place,

and from all surrounding circumstances.

(RESUMPTION OF MAIN CHARGE)

The second element the State must prove be yond a reasonable doubt is that the act was

committed upon human remains.

“Human remains” means the body of a deceased person or the dismembered part of a

body of a living person. It does not include cremated remains. 11

The third element the State must prove beyond a reasonable doubt is that the defendant

knew the act was being committed upon human remains.

Knowledge is a condition of the mind that can not be seen and that can be determined

only by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct

proof but must ordinarily be inferred from the fact s. Therefore, it is not necessary that the State

produce witnesses to testify that an accused said that he/she had a certain state of mind when

10 Since there is no enumerated mental state codified in the statute, the gap-filler provision

of N.J.S.A. 2C:2-2(c)(3) renders the mental state to be “knowingly.”

11 N.J.S.A. 2C:22-1(c).

DISTURBING/DESECRATING HUMAN REMAINS

N.J.S.A. 2C:22-1a(3)

he/she engaged in a particular act. It is within your power to find that such proof has been

furnished beyond a reasonable doubt by inference, which may arise from the nature of the

defendant’s acts and conduct, from all that he/she said and did at the particular time and place,

and from all surrounding circumstances.

If you find that the State has failed to prove any element of the offense beyond a

reasonable doubt, then you must find the defendant not guilty.

If you find that the State has proved each el ement of the offense beyond a reasonable

doubt, then you must find the defendant guilty.