CJI2d[NY] Penal Law § 130.30 (1)

The (specify) count is Rape in the Second Degree.

Under our law, a person is guilty of Rape in the Second Degree when, being eighteen years (18) old or more, he or she engages in vaginal sexual contact with another person less than fifteen (15) years old.

The following term used in that definition has a special meaning:

VAGINAL SEXUAL CONTACT means conduct between persons consisting of contact between the penis and the vagina or vulva.¹

Under our law, it is also an element of this offense that the vaginal sexual contact was committed without the consent of that other person.² Vaginal sexual contact 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 vaginal sexual contact when he or she is less than seventeen (17) years old.³ Thus, the law deems vaginal sexual contact with such a person to be without that person's consent, even if in fact that person did consent.

It is not a defense to this charge that the actor did not know that the person with whom the actor had vaginal sexual contact was less than fifteen (15) years old, or that the actor believed that such person was fifteen (15) years old or more on the date of the crime.⁴

[Add if applicable:

It is a defense to this charge that the defendant was married to the victim.⁴ "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.⁵]

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, each of the following (three/four) elements:

1. That on or about (date), in the County of (County) the defendant (defendant’s name), engaged in vaginal sexual contact with (complainant’s name); and,

2. That the defendant was eighteen years old or more ; and,

3. That (complainant’s name) was less than fifteen (15) years old.

Add if applicable:

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

5 See Penal Law § 130.00 (4). See Domestic Relations Law §§ 15 and 15-a.²

[NOTE: If the affirmative defense of Penal Law § 130.30 does not apply conclude as follows:

If you find the People have proven beyond a reasonable doubt 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 any one or more of those elements, you must find the defendant not guilty of this crime.

[NOTE: If the affirmative defense in Penal Law § 130.30 applies, omit the final two paragraphs of the above charge, and substitute the following:

If you find that the People have not proven beyond a reasonable doubt any one or more of those elements, you must find the defendant not guilty of this crime.

If you find that the People have proven beyond a reasonable doubt each of those elements, you must consider an affirmative defense the defendant has raised. Remember, if you have already found the defendant not guilty of Rape in the Second Degree you will not consider the affirmative defense.

Under our law, it is an affirmative defense to a prosecution for this crime that the defendant was less than four (4) years older than the complainant at the time of the act.

Under our law, the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.

In determining whether the defendant has proven the³ affirmative defense by a preponderance of the evidence, you may consider the evidence presented by the People or by the defendant.

A preponderance of the evidence means the greater part of the believable and reliable evidence, not in terms of the number of witnesses or the length of time taken to present the evidence, but in terms of its quality and the weight and the convincing effect it has. For the affirmative defense to be proved by a preponderance of the evidence, the evidence that supports the affirmative defense must be of such convincing quality as to outweigh any evidence to the contrary.

Therefore, if you find that the defendant has not proven the affirmative defense by a preponderance of the evidence, then, based upon your initial determination that the People have proven beyond a reasonable doubt the elements of Rape in the Second degree, you must find the defendant guilty of Rape in the second degree.

If you find that the defendant has proven the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of Rape in the second degree.