CJI2d[NY] Penal Law former § 130.45 (2)

The (specify) count is Criminal Sexual Act in the Second Degree.

Under our law, a person is guilty of Criminal Sexual Act in the Second Degree when he or she engages in

Select applicable alternative(s):

oral sexual conduct [or]

anal sexual conduct

with another person who is incapable of consent by reason of being mentally disabled [or mentally incapacitated].

The following terms used in that definition have a special meaning:

Select applicable alternative(s):

[ORAL SEXUAL CONDUCT means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.¹]

[ANAL SEXUAL CONDUCT means conduct between persons consisting of contact between the penis and anus.²]

It is an element of this crime that the [oral (or) anal] sexual conduct takes place without consent.³ [Oral (or) anal] sexual conduct takes place without a person's consent when that person is deemed by law to be incapable of consent. Under our law, a person is deemed INCAPABLE OF CONSENTING to [oral (or) anal] sexual conduct when he or she is mentally disabled [or mentally incapacitated].⁴

MENTALLY DISABLED means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.⁵

[Add if applicable:

It is a defense to this charge that the defendant was married to the victim.⁶ "Married" means the existence of the relationship between the defendant and the victim as spouses which was recognized by law at the time of the alleged commission of this charge crime.⁷]

[MENTALLY INCAPACITATED means that a person is rendered temporarily incapable of appraising or controlling his or her conduct owing to the influence of a narcotic or intoxicating substance administered to him or her without his or her consent, (or to any other act committed upon him without his or her consent).⁸]

Thus, the law deems [oral (or) anal] sexual conduct with such a person to be without that person's consent, even if in fact that person did 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/each) of the following (two/three) elements:

1. That on or about (date), in the county of (County) the defendant (defendant’s name), engaged in

Select applicable alternative(s):

oral sexual conduct [or]

anal sexual conduct

with (name of complainant) ; and

2. That (complainant’s name) was incapable of consent by reason of being mentally disabled [or mentally incapacitated].

[Add if applicable:

3. That the defendant was not married to (name of complainant).]

If you find the People have proven beyond a reasonable doubt [both / each] 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 / any one or more] 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 applicable charge in the “additional charges” section from the end of this article.³

NOTE: Where lack of consent results solely from incapacity to consent because of the alleged victim's mental disability or mental incapacity, a charge on corroboration is required, and that charge is in the “additional charges” section of this article. Penal Law § 130.16.⁴