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

Approved 10/17/88

CONSENT

(WHICH PRECLUDES THE INFLICTION OF THE HARM)

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

As part of his/her defense to the charge of _____________________, the defendant

contends that he/she is not guilty because the victim consented to the alleged criminal activity

and was therefore not harmed in a way that the law seeks to prevent.

In considering this contention you should unders tand that the consent of the victim can be

a defense if it precludes the infliction of the ha rm or evil that the law seeks to prevent 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 rise 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 the conduct charged to

constitute the offense; or

(b) the victim was by reason of (his/he r) (choose appropriate factor) youth,

mental disease or defect or intoxica tion either known by the defendant to

be unable or was manifestly unable to make a reasonable judgment as to

the nature of harmfulness of the conduct charged to constitute an offense;

or

(c) the victim's consent was induced by force, 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

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)

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

charged.2

(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 consented to (or threat ened by the conduct consented to) is not

serious; or

(2) The conduct and the harm are reasonably 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

In this case, as I have already explained to you, the defendant is ch arged with a violation

of a provision of our criminal law which reads in pertinent part:

READ STATUTE

This provision of our law was intended to: (DISCUSS THE PURPOSE OF THE

STATUTE AND THE HARM OR EVIL IT SEEKS TO PREVENT).

Accordingly, you are advised th at if the victim was not harmed or threatened in a manner

that the statute seeks to preven t because (he/she) actually consented to the alleged criminal

conduct, then the defendant has a valid defense.

Of course, you are reminded th at the State has the burden of proving each element of the

offense beyond a reasonable doubt and must al so prove beyond a reasonable doubt that the

victim did not give (his/her) legally effective consent as I have defined that term for you.4

Thus, if you find that the State has not proven each element of the offense beyond a

reasonable doubt or also has not disproved the defense of cons ent beyond a reas onable doubt,

then you must find the defendant not guilty.

If, on the other hand, you are satisfied that the State has proven each element of the

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.

4 N.J.S.A. 2C:1-13 and N.J.S.A. 2C:1-14h

CONSENT

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

offense beyond a reasonable doubt and has also proven beyond a reasonable doubt that the

victim did not consent or that (his/her) consent was not legally effective, then you must find the

defendant guilty as charged.5

5 If the defendant claims he mistakenly believed that the victim consented, appropriate instructions on

ignorance or mistake, N.J.S.A. 2C:2-4, may be necessary.