N.J. Model Criminal Jury Charge, N.J.S.A. 2C:24-4b(3)

Revised 1/14/08

ENDANGERING THE WELFARE OF A CHILD

(PORNOGRAPHY)

(N.J.S.A. 2C:24-4(b)(3))

Defendant is charged in count ______ of the indictment with endangering the welfare of a

child.

[READ COUNT OF INDICTMENT]

The statute under which this charge is based reads in pertinent part:

A person who causes or permits a child to engage in a prohibited

sexual act or in the simulation of such an act [who] knows, has reason

to know or intends that the pr ohibited act may be photographed,

filmed, reproduced or reconstructed in any manner, including on the

Internet, or may be part of an exhibition or performance, is guilty of a

crime.

In order to convict defendant of this charge, the State must prove the following elements

beyond a reasonable doubt:

1. That defendant knowingly caused or permitted a child to engage in a prohibited

sexual act or in the simulation of such an act.

2. That defendant knew, had reason to know or intended that the prohibited act was

to be photographed, filmed, reproduced or reconstructed in any manner or could

be a part of an exhibition or performance.

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

knowingly caused or permitted (the victim’s name) to engage in a prohibited sexual act or in the

simulation of such an act. A child means any pe rson under the age of 16 years of age. The State

must prove beyond a reasonable doubt that the child was under the age of 16 at the time of the

offense. It is not a defense that the defendant did not know that the child was under the age of 16 or

that the defendant believed that the child was 16 years old or older, even if such a mistaken belief

was reasonable.

1

A prohibited sexual act means

[CHOOSE APPROPRIATE]

sexual intercourse, which is penetration, however slight, of the vagina by a penis.2

anal intercourse, which is penetration, however slight, into the anus.3

masturbation, which is stimulation of the genitals.4

1 N.J.S.A. 2C:24-4b(6). See State v. Perez, 177 N.J. 540, 555 (2003).

2 Hice v. State, 593 S.W.2d 57, 64 (Ark. 1980) and cases cited there.

ENDANGERING THE WELFARE OF A CHILD

(PORNOGRAPHY)

N.J.S.A. 2C:24-4(b)(3)

bestiality, which is a sexual connection between a person and an anim al.5

sadism, which is sexual gratification dependent largely on the infliction of pain on others.6

masochism, which is sexual gratification dependent largely on the infliction of physical or mental

abuse on the person.7

fellatio, which is oral contact with the male sexual organ.8

cunnilingus, which is oral contact with the female sex organ.9

nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view

such depiction.

vaginal intercourse, which is the penetration of the vagina, or [where appropriate] of the space

between the labia majora or outer lips of the vulva.10

sexual penetration, which is insertion of the hand, finger or object into the anus or vagina, either by

the defendant or on the defendant’s instructions.11

sexual contact, which is an intentional touching by the victim or defendant, either directly or through

clothing, of the victim’s or defendant’s intimate parts for the purpose of degrading or humiliating the

victim or sexually arousing or sexually gratifying the defendant.12

To cause is to do something that produces an effect or result. To permit is to consent to

formally or to give opportunity for or allow or admit of.13

A person acts knowingly with respect to the na ture 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

3 State v. Gallagher, 286 N.J. Super. 1, 13 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).

4 People v. Lamb, 90 Cal. Rptr.2d 565, 576 (Ct. App. 1999)

5 State v. Bonynge, 450 N.W.2d 331, 338 (Minn. Ct. App. 1990).

6 Ex Parte Anderson, 902 S.W.2d 695, 700 (Tex. Ct. App. 1995).

7 Id. at 700.

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

9 State v. Fraction, 206 N.J. Super. 532, 535-36 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986).

10 See 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 are

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 commonly referred to as the vaginal lips, that is

sufficient to establish penetration under the law.”

11 N.J.S.A. 2C:24-4b(j) refers to “[a]ny act of sexual penetration or sexual contact as defined in N.J.S.A. 2C:14-1.”

Every other act of “penetration” referred to in N.J.S.A. 2C:14-1, except for vaginal intercourse, is set forth in the

definition of prohibited sexual act.

12 N.J.S.A. 2C:14-1d. See 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 are 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 commonly referred to as the

vaginal lips, that is sufficient to establish penetration under the law.”

13 State v. V.R. 387 N.J. Super. 342, 346 (App. Div. 2006).

ENDANGERING THE WELFARE OF A CHILD

(PORNOGRAPHY)

N.J.S.A. 2C:24-4(b)(3)

a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a

result. “Knowing,” “with knowledge,” or equivalent term

s have the same meaning.

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

knew, had reason to know or intended that th e prohibited act might be photographed, filmed,

reproduced, or reconstructed in any manner or might be part of an exhibition or performance. I have

defined knowingly for you. A person has reason to know if a reasonably prudent person in his/her

situation would have known. A person intends an act if he/she acts purposely. A person acts

purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious

object to engage in conduct of that nature or to cause such a result. A person acts purposely with

respect to attendant circumstances if the individual is aware of the existence of such circumstances

or the individual believes or hopes that they exis t. “With purpose,” “designed,” “with design” or

equivalent terms have the same meaning.

Knowledge and purpose are conditions of the mind. They cannot be seen and can only be

determined by inference 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 accused said that he/she had a certain

state of mind when he/she did a particular thing. 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 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.

If you find that the State has proven every element beyond a reasonable doubt, then you must

find defendant guilty. If you find that the State has failed to prove any element beyond a reasonable

doubt, then you must find defendant not guilty.

[CHARGE IF FIRST DEGREE CRIME ALLEGED]

Ordinarily, endangering the welfare of a child is a crime of the second degree. However, it is

a crime of the first degree if the defendant wa s a parent, guardian or other person who has been

legally charged with the care or custody of the child by a court or public agency.14 Here, the State

alleges that defendant was (victim’s name) [parent] [guardian] [other person]. If you find that the

State has proven beyond a reasonable doubt that defendant was (victim’s name) [parent] [guardian]

[other person], then you must find defendant guilty of first degree endangering the welfare of a child.

14 See State v. McAllister, 394 N.J. Super. 571, 576 (App. Div. 2007). Under the Appellate Division’s opinion, an

individual who has informally assumed custody of the child cannot be charged with a first degree offense.

ENDANGERING THE WELFARE OF A CHILD

(PORNOGRAPHY)

N.J.S.A. 2C:24-4(b)(3)

If you find that the State has failed to prove beyond a reasonable doubt that defendant was (victim’s

name) [parent] [guardian] [other person], then you must find defendant guilty of second degree

endangering the welfare of a child.