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

Approved 9/8/14

ENDANGERING THE WELFARE OF A CHILD

(PORNOGRAPHY)

Applies to crimes committed after August 14, 2013

(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 prohibited 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 prohi bited sexual act or in the

simulation of such an act. A child means any person under the age of 18 years of age. The State

must prove beyond a reasonable doubt that the child was under the age of 18 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 18 or

that the defendant believed that the child was 18 years old or older, even if such a mistaken belief

was reasonable.

1

A prohibited sexual act means:

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

ENDANGERING THE WELFARE OF A CHILD (PORNOGRAPHY)

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

[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

bestiality, which is a sexual connection between a person and an animal.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 penet ration 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

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

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 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. 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.

ENDANGERING THE WELFARE OF A CHILD (PORNOGRAPHY)

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

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 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 that it is practically certain that the conduct will cause a

result. “Knowing,” “with knowledge,” or equivalent terms 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 the 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 exist. “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

12 N.J.S.A. 2C:14-1d. See footnote 9 supra.

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:24-4b(3)

acts and conduct and from all he/she said and did 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.