NY · jury_instructions
CJI2d[NY] Penal Law former § 130.35 (2)
RAPE IN THE FIRST DEGREE (Physical Helplessness)
The (specify) count is Rape in the First Degree.
Under our law, a person is guilty of Rape in the First Degree when he or she engages in sexual intercourse with another person who is incapable of consent by reason of being physically helpless.
The following terms used in that definition have a special meaning:
SEXUAL INTERCOURSE means any penetration, however slight, of the penis into the vaginal opening. In other words, any penetration of the penis into the vaginal opening, regardless of the distance of penetration, constitutes an act of sexual intercourse. Sexual intercourse does not necessarily require erection of the penis, emission, or orgasm. ¹
A person is INCAPABLE OF CONSENT when that person is physically helpless.²
PHYSICALLY HELPLESS means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.³
Under our law, sexual intercourse with A PHYSICALLY HELPLESS person is deemed to be without that person's consent.
In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, both of the following two elements:
1. That on or about (date) , in the county of (County) , the defendant, (name of defendant), engaged in sexual intercourse with (name of complainant); and
2. That (name of complainant) was incapable of consent by reason of being physically helpless.
If you find the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of this crime.
If you find the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of this crime.
[NOTE: If the affirmative defense set forth in Penal Law § 130.10(1) applies, omit the final two paragraphs of the above charge, and substitute the charge at the end of this article.]³
History
Caption: RAPE IN THE FIRST DEGREE (Physical Helplessness) Penal Law § 130.35 (2) (Committed on or after Feb. 1, 2001). Read from the committee's Word file. Prepared by the New York State Unified Court System Committee on Criminal Jury Instructions, Model Colloquies, and Evidence Rules; published by the Unified Court System at nycourts.gov (the internet edition is the only current and official publication of CJI2d).
Provenance
- Source
- nycourts.gov
- Retrieved
- 2026-09-25
- Edition
- 2026-09-25
- Content hash
5675e600e60614aa17c5e80c7d0b638911ef20c4b80290f69e3aa261bac58415
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