CJI2d[NY] Penal Law former § 130.55 (Incapacity to Consent)

The (specify) count is Sexual Abuse in the Third Degree.

Under our law, a person is guilty of Sexual Abuse in the Third Degree when he or she subjects another person to sexual contact without that person's consent.

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

SEXUAL CONTACT means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party. It includes the touching of the actor by the victim as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.³

Sexual contact takes place WITHOUT A PERSON'S CONSENT when that person is deemed incapable of consent.⁴ Under our law, a person is deemed INCAPABLE OF CONSENTING to sexual contact when he or she is:

[NOTE: Select appropriate alternative:

less than seventeen (17) years old.⁵

It is not a defense to this charge that the actor did not know that the person with whom the actor had sexual contact was less than seventeen (17) years old, or that the actor believed that such person was seventeen (17) years old or more on the date of the crime.⁶

or

mentally disabled.⁷

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.⁸

or

mentally incapacitated.⁹

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 or her without his or her consent).¹⁰

or

physically helpless.¹¹

PHYSICALLY HELPLESS means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.¹²

or

committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital,¹³ and the actor is an employee¹⁴ who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital.¹⁵

or

committed to the care and custody of a local correctional facility,¹⁶ and the actor is an employee,¹⁷ not married to such person,¹⁸ who knows or reasonably should know that such person is committed to the care and custody of such facility.¹⁹

or

committed to or placed with the office of children and family services and in residential care, and the actor is an employee,²⁰ not married to such person,²¹ who knows or reasonably should know that such person is committed to or placed with the office of children and family services and in residential care.²²

or

a client or patient and the actor is a health care provider²³ or mental health care provider²⁴ and the act of sexual contact occurs during a treatment session, consultation, interview, or examination,²⁵ and, such conduct was not performed for a valid medical or mental health care purpose.²⁶

or

a resident or inpatient of a residential facility operated, licensed or certified by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee²⁷ of the facility not married to such resident or inpatient. ²⁸]

or

detained or otherwise in the custody of a police officer, [peace officer, or other law enforcement official] and the actor is a police officer, [peace officer or other law enforcement official] who either: (i) is detaining or maintaining custody of such person; or (ii) knows, or reasonably should know, that at the time of the offense, such person was detained or in custody. ²⁹

[Note: in any prosecution under this article in which the victim’s lack of consent is based solely on his or her incapacity to consent because he or she was less than seventeen years old; mentally disabled; a client or patient and the actor is a health care provider, detained or otherwise in custody of a law enforcement official, or committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is an employee, add if in issue:

It is a defense to this charge that the defendant was married to the victim.³⁰ “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 crime.³¹]

NOTE: This is the end of definitions and the resumption of the charge.

Thus, the law deems sexual contact 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, (name of defendant) , subjected (name of complainant) to sexual contact; and

2. That the defendant did so without the consent of (name of complainant) because (name of complainant) was incapable of consent [and]

[Add if applicable:

1. 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 or Penal Law § 130.55 applies, omit the final two paragraphs of the above charge, and substitute the appropriate charge at the end of this article.]

[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. Penal Law § 130.16. See charge at the end of this article.]