NY · jury_instructions
CJI2d[NY] Penal Law former § 130.65 (2)
SEXUAL ABUSE IN THE FIRST DEGREE (Physical Helplessness)
The (specify) count is Sexual Abuse in the First Degree.
Under our law, a person is guilty of Sexual Abuse in the First Degree when he or she subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless.
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.²
A person is INCAPABLE OF CONSENT when that person is physically helpless.³
PHYSICALLY HELPLESS means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.⁴
Under our law, sexual contact 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 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) , subjected (name of complainant) to sexual contact; 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 applicable charge in the “additional charges” section from the end of this article.³
History
Caption: SEXUAL ABUSE IN THE FIRST DEGREE (Physical Helplessness) Penal Law § 130.65 (2) (Committed on or after Oct. 13, 2010). 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
044327b852df87eda635a231eb12e737a92f606dd72a49b57f2b614c7fc3af90
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