CJI2d[NY] Penal Law § 130.35(3)(c)

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 anal sexual contact with another person who is less than eleven (11) years old.

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

ANAL SEXUAL CONTACT means conduct between persons consisting of contact between the penis and anus.¹

Under our law, it is also an element of this offense that the anal sexual contact was committed without the consent of that other person.² Anal 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 anal sexual contact when that person is less than eleven (11) years old.³ Thus, the law deems anal 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 anal sexual contact was less than eleven (11) years old, or that the actor believed that such person was eleven (11) years old or more on the date of the crime.⁴

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 anal sexual contact with (name of complainant); and

2. That (complainant’s name) was less than eleven (11) years old.

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.