Vermont Model Criminal Jury Instructions CR27-741

The State has charged (Def)_______________ with possession of child pornography, as follows:

[Read the charge.]

Every crime is made up of essential elements. Before (Def)_______________ can be found guilty of the charge, the State must have proven each of the essential elements beyond a reasonable doubt. In this case, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________;

(2) possessed a [photograph] [film] [visual depiction];

(3) of [sexual conduct by a child] [a clearly lewd exhibition of a child’s genitals or anus]; and

(4) [he] [she] had knowledge of the character and content of the [photograph] [film] [visual depiction].

The first essential element is that (Def)_______________ is the person who committed the alleged acts.

The second essential element is that (Def)_______________ possessed a [photograph] [film] [visual depiction]. This includes any depiction which is stored electronically.

The third essential element is that the [photograph] [film] [visual depiction] was of [sexual conduct by a child] [a clearly lewd exhibition of a child’s genitals or anus]. Child means any person under the age of 16 years. [Here the term sexual conduct is defined to mean any of the following:

(A) any conduct involving contact between the penis and the vulva, the penis and the penis, the penis and the anus, the mouth and the penis, the mouth and the anus, the vulva and the vulva or the mouth and the vulva;

(B) any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desire of any person;

(C) any intentional touching, not through the clothing, of the genitals, anus or breasts of another with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desire of any person;

(D) masturbation;

(E) bestiality; or

(F) sadomasochistic abuse for sexual purposes.]

[The word genitals refers to the external sexual organs.]

[A lewd exhibition is one that is sexually obscene or indecent. In deciding whether or not an exhibition was lewd, you should apply your sense of the community standards of sexual decency. You should understand that nudity alone is not sufficient to prove the element of lewdness.]

[In determining whether the exhibition was lewd, you may consider the following circumstances:

• whether the focal point of the visual depiction is on the child’s genitals or pubic area;

• whether the setting of the visual depiction is sexually suggestive (that is, in a place or pose generally associated with sexual activity);

• whether the child is depicted fully or partially clothed or nude.

• whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

• whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

• You may also consider any other facts and circumstances supported by the evidence.]

The last essential element is that (Def)_______________ acted with knowledge of the character and content of the [photograph] [film] [visual depiction]. The State must have proven that (Def)_______________ was actually aware that the [photograph] [film] [visual depiction] [included sexual conduct by the child] [contained a lewd exhibition of the child’s [genitals] [anus]].

All of the elements of the offense must have been present at the same time. If the State has not proven each of the essential elements of the charge beyond a reasonable doubt, then you must find (Def)_______________ not guilty. However, if the State has proven all of the essential elements beyond a reasonable doubt, you must return a verdict of guilty.

[AFFIRMATIVE DEFENSE]

[In this case there is an additional issue regarding an affirmative defense, described below. If you find that the State has proven all of the essential elements of possession of child pornography, beyond a reasonable doubt, you will need to consider this defense. But, if the State has not proven all of the essential elements of possession of child pornography, then you must return a verdict of “not guilty,” and your job is done.

It is a defense to the crime of possession of child pornography if (Def)_______________ [in good faith had a reasonable basis to conclude that the child in fact had attained the age of 16 when the depiction was made] [in good faith took reasonable steps, whether successful or not, to destroy or eliminate the depiction].

(Def)_______________ bears the burden of proving this defense, by a preponderance of the evidence. This means that the evidence must show that the elements of the defense are more likely true than not true. This burden of proof is less than proof beyond a reasonable doubt. Therefore, if (Def)_______________ has proven this defense by a preponderance of the evidence, you must find [him] [her] not guilty.]

[For a fuller instruction on Proof by a Preponderance of the Evidence, insert CR04-121.]