CJI2d[NY] Penal Law § 130.60 (1)

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

Under our law, a person is guilty of Sexual Abuse in the Second Degree when he or she subjects another person to sexual contact and when such other person is incapable of consent.²

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

It is an element of this crime that the sexual contact takes place without consent.⁴ 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 sexual contact when he or she is:

[NOTE: Select an appropriate alternative:

mentally disabled.⁵

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.⁶

or mentally incapacitated.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 or her without his or her consent.⁸

or physically helpless.⁹

PHYSICALLY HELPLESS means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.¹⁰

or

(INSERT the appropriate paragraph set forth in Penal Law § 130.05 (3)]. Note: There are multiple paragraphs to Penal Law § 130.05(3). A paragraph enacted after the effective date of this instruction (October 13, 2010) of course applies to the commission of the crime on or after the effective date of an added paragraph.

Some of paragraphs in Penal Law § 130.05 contain a definition(s) of a term(s) used in that paragraph.

Some of the paragraphs include a term defined in a separate statute and there is a cross-reference to those definitions.

There are three terms used in some paragraphs that are defined in Penal Law § 130.00 which are applicable to Penal Law art. 130, namely: “married” [Penal Law § 130.00(4)]; “health care provider” [Penal Law § 130.00(12); “mental health care provider” [Penal Law § 130.00(13)]. If in issue, the applicable definition should be charged).

[Note: Penal Law § 130.10(4) states: “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 law enforcement under the circumstances described in paragraph (j) of subdivision three of section 130.05 of this article, 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, it shall be a defense that the defendant was married to the victim as defined in subdivision four of section 130.00 of this article.”

Thus, add if applicable:

It is a defense to this charge that the defendant was married to the victim.¹¹ “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.¹²]

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, (defendant's name), subjected (name of complainant) to sexual contact; and

2. That (name of complainant) was incapable of consent.

[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.

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.