N.J. Model Criminal Jury Charge, N.J.S.A. 2C:2-10

Approved 10/17/88

CONSENT

(WHICH NEGATES AN ELEMENT OF THE OFFENSE)

(N.J.S.A. 2C:2-10)

As part of his/her defense to the charge of , the defendant contends that the State

has not proven each element of the offense beyond a reasonable doubt because the victim

consented to the alleged criminal activity. In considering this contention you should understand

that consent of the victim can be a complete defense to a criminal charge only under certain

limited circumstances which I will describe for you.

First, you should know that consent in the law has a meaning very similar to its everyday

meaning. It is the victim's voluntary and serious agreement or submission to the alleged criminal

conduct or the result of that conduct. In order for consent to give ri se to a valid defense it must,

of course, be given freely and it must be legally effective.

Consent can never be legally effective in pr oviding a defense to a criminal charge if:

(CHOOSE APPROPRIATE FACTOR(S))

1

(a) the victim was not legally compet ent to authorize th e conduct charged to

constitute the offense; or

(b) the victim was by reason of (his/h er) (choose appropriate factor) youth, mental

disease or defect or intoxicati on either known by the defendant to be unable or was manifestly

unable to make a reasonable judgement as to the nature of harmfulness of the conduct charged to

constitute an offense; or

(c) the victim's consent was induced by fo rce, duress or deception of a kind that

the law defining the offense seeks to prevent.

In determining whether the consent of the victim was freely and voluntarily given, you

are advised that consent may be openly expressed, implied, or apparent from the victim's willing

participation in the activity in question. Further, you may consider all that (he/she) said and did

at the particular time and place, all of the surrounding circumstances and whether a normal

competent person would freely and seriously consen t to the conduct with which the defendant is

1 Supplemental instructions regarding individual factors and code definitions of key terms should be provided

where appropriate.

CONSENT

(N.J.S.A. 2C:2-10)

charged.2

In this case, as I have already explaine d to you the State must prove the following

elements beyond a reasonable doubt:

LIST ELEMENTS OF OFFENSE

Thus, in considering whether the State has met its burden of proof, you must determine

whether the consent of the victim has negated or made it impossible for the State to prove any

one of these elements. For example:

(Here discuss factua l context of case, i.e., consent of victim in forgery case negates

"without authorization" element.)

(IN CASES INVOLVING BODILY HARM INCLUDE THE FOLLOWING)

Because this case involves conduct which cause d (or threatened to cause) bodily harm as

I have previously defined that term for you, there is an additional requirement that must be

satisfied before consent can be legally effective and give rise to a valid defense.

(CHOOSE APPROPRIATE FACTOR)

(1) The bodily harm c onsented to (or threatened by the conduct consented to) is

not serious; or

(2) The conduct and the harm are r easonable foreseeable hazards of joint

participation in a concerted activity of a kind not forbidden by law; or

(3) The consent establishes justification for the conduct under Chapter 3 of the

code.

3

As you consider these questions and the extent to which consent of the victim may have

negated or nullified any of the elements of the offense, you are reminded that the burden remains

on the State to prove each element of the offe nse beyond a reasonable doubt. Therefore, in this

case it is also the State's burden to prove beyond a reasonable doubt that the victim did not give

legally effective consent as I have defined that term which negated any elements of the offense.

In conclusion then, if you find that the le gally effective consent of the victim has

prevented the State from proving each element of the offens e beyond a reasonable doubt, then

2 State v. Brown 143 N.J. Super. 571, 577 (Law Div. 1976), aff'd 154 N.J. Super. 511 (App. Div. 1977).

3 Supplemental instructions regarding justific ation should be furnished where appropriate.

CONSENT

(N.J.S.A. 2C:2-10)

you must find him/her not guilty.

If, on the other hand, you are satisfied be yond a reasonable doubt that the State has

proven each element of the offense because the victim did not consent or because (his/her)

consent was not legally effective than you must find the defendant guilty as charged.