CR1601 Definitions.

["Bodily injury” means physical pain, illness, or any physical impairment.]

[“Serious bodily injury” means bodily injury that creates a substantial risk of death or creates or causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.]

Reference: Utah Code § 76-1-601

[“Dangerous weapon” means:

1. any item capable of causing death or serious bodily injury; or
2. a facsimile or representation of the item, if:
1. the actor's use or apparent intended use of the item leads the victim to reasonably believe the item is likely to cause death or serious bodily injury;
2. or the actor represents to the victim verbally or in any other manner that he is in control of such an item.]

Reference: Utah Code § 76-1-601

[“Grievous sexual offense” means rape; rape of a child; object rape; object rape of a child; forcible sodomy; sodomy on a child; aggravated sexual abuse of a child; aggravated sexual assault; any felony attempt to commit one of the above offenses; or an offense in another state, territory, or district of the United States that, if committed in Utah, would constitute one of the above offenses.]

Reference: Utah Code § 76-1-601

[“Health professional” means an individual who is licensed or who holds himself or herself out to be licensed, or who otherwise provides professional physical or mental health services, diagnosis, treatment, or counseling including, but not limited to, a physician, osteopathic physician, nurse, dentist, physical therapist, chiropractor, mental health therapist, social service worker, clinical social worker, certified social worker, marriage and family therapist, professional counselor, psychiatrist, psychologist, psychiatric mental health nurse specialist, or substance abuse counselor.]

Reference: Utah Code § 76-5-406

["Indecent liberties” means:

1. touching [(VICTIM’S NAME) (MINOR’S INITIALS)]’s genitals, anus, buttocks, pubic area, or female breast;
2. causing any part of [(VICTIM’S NAME) (MINOR’S INITIALS)]’s body to touch the actor's or another's genitals, pubic area, anus, buttocks, or female breast;
3. simulating or pretending to engage in sexual intercourse with [(VICTIM’S NAME) (MINOR’S INITIALS)], including genital-genital, oral-genital, anal-genital, or oral-anal intercourse; or
4. causing [(VICTIM’S NAME) (MINOR’S INITIALS)] to simulate or pretend to engage in sexual intercourse with the actor or another, including genital-genital, oral-genital, anal-genital, or oral-anal intercourse.]

Reference: Utah Code Ann. § 76-5-416

Committee Note: The legislature enacted the above definition, effective May 14, 2019. Before that date, the definition was based upon case law. See, e.g., State v. Lewis, 2014 UT App 241, 337 P.3d 1053; State v. Peters, 796 P.2d 708 (Utah App. 1990)

[“Position of special trust” means an adoptive parent; an adult athletic manager; an aunt; a babysitter; a coach; an adult cohabitant of a parent; a counselor; a doctor or physician; an employer; a foster parent; a grandparent; a legal guardian; a natural parent; an adult recreational leader; a religious leader; an adult sibling or stepsibling; an adult scout leader; a stepparent; a teacher or any other person employed by or volunteering at a public or private elementary school or secondary school, and who is 18 years of age or older; an uncle; an adult youth leader; any other person in a position of authority that enables the person to exercise undue influence over the child.]

Reference: Utah Code § 76-5-404.1

[“Religious counselor” means a minister, priest, rabbi, bishop, or other recognized member of the clergy.]

Reference: Utah Code § 76-5-406

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Based on the principle of State v. Couch, 635 P.2d 89 (Utah 1981), the committee has chosen to provide definitions only for words defined by statute or case law. If the jury requests a definition for a word not defined by statute or case law, practitioners and judges should work together to define this word using its ordinary and accepted meaning. Id.

For the definition of “grievous sexual offense,” see CR1617, Sexual Offense Prior Conviction.

The definition of “position of special trust” applies to crimes committed on or after May 13, 2014. For crimes committed before May 13, 2014, see State v. Watkins, 2013 UT 28, 309 P.3d 209.

In regard to in subpart 2.a. and 2.b. of the definition of "dangerous weapon," the committee considered the use of the word “victim” in light of State v. Vallejo, 2019 UT 38, ¶¶ 99-102, but chose to preserve the language set forth in the statute. Any attempt to alter the instruction in an effort to avoid the use of the word “victim” appears to impermissibly change the meaning of the statute.

Amended Dates:

CR1602 Sexual Abuse of a Minor.

(DEFENDANT’S NAME) is charged [in Count __] with committing Sexual Abuse of a Minor [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly:
   1. [touched (MINOR’S INITIALS)’s anus, buttocks, or any part of (his)(her) genitals, even if accomplished through clothing;] or
   2. [touched (FEMALE MINOR’S INITIALS)’s breast, even if accomplished through clothing;] or
   3. [otherwise took indecent liberties with (MINOR’S INITIALS);] or
   4. [caused (MINOR’S INITIALS) to take indecent liberties with any person;]
3. With the intent [to arouse or gratify the sexual desire of any person] [to cause substantial emotional or bodily pain to any person];
4. (MINOR’S INITIALS) was 14 or 15 years old at the time of the conduct; and
5. (DEFENDANT’S NAME) was seven or more years older than (MINOR’S INITIALS).

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Amended Dates:

CR1603 Unlawful Sexual Activity with a Minor.

(DEFENDANT’S NAME) is charged [in Count _____] with committing Unlawful Sexual Activity with a Minor [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt all of the elements in one or more of the following variations:

VARIATION A:

1. (DEFENDANT’S NAME);

2. Intentionally, knowingly, or recklessly had sexual intercourse;

3. With (MINOR’S INITIALS); and

4. (MINOR’S INITIALS) was 14 or 15 years old at the time of the conduct.

[OR]

VARIATION B:

1. (DEFENDANT’S NAME);

2. Intentionally, knowingly, or recklessly engaged in any sexual act with (MINOR’S INITIALS);

3. The sexual act involved touching, however slight, of the genitals of one person with the mouth or anus of another;

4. The touching of (MINOR’S INITIALS)’s genitals, mouth or anus involved (MINOR’S INITIALS)’s skin; and

5. (MINOR’S INITIALS) was 14 or 15 years old at the time of the conduct.

[OR]

VARIATION C:

1. (DEFENDANT’S NAME);

2. Intentionally, knowingly, or recklessly caused the penetration, however slight, of the genital or anal opening of (MINOR’S INITIALS) by any foreign object, substance, instrument, or device, including a part of the human body;

3. With the intent [to arouse or gratify the sexual desire of any person] [to cause substantial emotional or bodily pain to any person]; and

4. (MINOR’S INITIALS) was 14 or 15 years old at the time of the conduct.

After you carefully consider all the evidence in this case, if you are convinced that each and every element of [one or more of the above variations] has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element [of at least one of the above variations] has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Utah Code § 76-5-407

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Variation A should be used with CR1616A, Conduct Sufficient to Constitute Sexual Intercourse for Unlawful Sexual Activity with a Minor, Unlawful Sexual Conduct with a 16 or 17 Year Old, or Rape.

Amended Dates:

CR1604 Unlawful Sexual Conduct with a 16 or 17 Year Old.

(DEFENDANT’S NAME) is charged [in Count ___] with committing Unlawful Sexual Conduct with a 16 or 17 year old [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly:
   1. [had sexual intercourse with (MINOR’S INITIALS);] or
   2. [engaged in any sexual act with (MINOR’S INITIALS) involving the touching, however slight, of the genitals of one person with the mouth or anus of another, even if accomplished through clothing;] or
   3. [caused the penetration, however slight, of the genital or anal opening of (MINOR’S INITIALS) by any foreign object, substance, instrument, or device, including a part of the human body:
      1. [with the intent to arouse or gratify the sexual desire of any person]; or
      2. [with the intent to cause substantial emotional or bodily pain to any person];] or
   4. [touched (MINOR’S INITIALS)’s anus, buttocks, or any part of (his)(her) genitals, even if accomplished through clothing, or touched (FEMALE MINOR’S INITIALS)’s breast, even if accomplished through clothing, or otherwise took indecent liberties with (MINOR’S INITIALS), or caused (MINOR’S INITIALS) to take indecent liberties with the defendant or another person:
   1. [with the intent to arouse or gratify the sexual desire of any person]; or
   2. [with the intent to cause substantial emotional or bodily pain to any person].]
3. At the time of the conduct, (MINOR’S INITIALS) was 16 or 17 years old; and
4. At the time of the conduct, (DEFENDANT’S NAME) was:
   1. [seven or more but less than ten years older than (MINOR’S INITIALS), and (DEFENDANT’S NAME) knew or reasonably should have known (MINOR’S INITIALS)’s age]; or
   2. [ten or more years older than (MINOR’S INITIALS)].

After you carefully consider all the evidence in this case, if you are convinced that each and every element [of one or more of the above variations] has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element [of at least one of the above variations] has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

If the State intends to rely on subsection 2d in combination with 2a, 2b, or 2c, use SVF 1604, Unlawful Sexual Conduct with a 16 or 17 year old special verdict form.

Subsection 2a should be used with CR1616A, Conduct Sufficient to Constitute Sexual Intercourse for Unlawful Sexual Activity with a Minor, Unlawful Sexual Conduct with a 16 or 17 Year Old, or Rape.

Amended Dates:

CR1605 Rape.

(DEFENDANT’S NAME) is charged [in Count__] with committing Rape [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);

2. Intentionally, knowingly, or recklessly had sexual intercourse with (VICTIM’S NAME);

3. Without (VICTIM’S NAME)’s consent; and

4. (DEFENDANT’S NAME) acted with intent, knowledge or recklessness that (VICTIM’S NAME) did not consent.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

State v. Barela, 2015 UT 22.

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Although the committee believes that the applicable mens rea as to element 4 would be knowledge or recklessness, it has included intent based on the Utah Supreme Court’s opinion in State v. Barela, 2015 UT 22.

Use this instruction with CR 1616B, Conduct Sufficient to Constitute Sexual Intercourse for Rape.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1606 Rape of a Child.

(DEFENDANT’S NAME) is charged [in Count__] with committing Rape of a Child [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
   1. intentionally, knowingly, or recklessly;
   2. had sexual intercourse with (MINOR’S INITIALS); and
2. (MINOR’S INITIALS) was under 14 years old at the time of the conduct.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

State v. Martinez, 2000 UT App 320

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Use this instruction with CR 1616B, Conduct Sufficient to Constitute Sexual Intercourse for Rape of a Child.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1607 Object Rape.

(DEFENDANT’S NAME) is charged [in Count ___] with committing Object Rape [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly caused the penetration, however slight, of [([VICTIM’S NAME][MINOR’S INITIALS])’s anal opening] [([VICTIM'S NAME] [MINOR'S INITIALS])'s genital opening, including the outer folds of the labia], by any object or substance other than the mouth or genitals;
3. The act was without ([VICTIM’S NAME] [MINOR’S INITIALS])’s consent;
4. (DEFENDANT’S NAME) acted with intent, knowledge, or recklessness that ([VICTIM’S NAME] [MINOR’S INITIALS]) did not consent; and
5. (DEFENDANT’S NAME) did the act with the intent to:
   1. cause substantial emotional or bodily pain to ([VICTIM’S NAME] [MINOR’S INITIALS]); or
   2. arouse or gratify the sexual desire of any person.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1608 Object Rape of a Child.

DEFENDANT’S NAME) is charged [in Count ___] with committing Object Rape of a Child [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly caused the penetration or touched the skin, however slight, of (MINOR’S INITIALS)’s genital or anal opening with any object or substance that is not a part of the human body;
3. With the intent to:
1. cause substantial emotional or bodily pain to (MINOR’S INITIALS); or
2. arouse or gratify the sexual desire of any person; and
4. (MINOR’S INITIALS) was under the age of 14 at the time of the conduct.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

State v. Martinez, 2000 UT App 320

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1609 Forcible Sodomy.

(DEFENDANT’S NAME) is charged [in Count ___] with committing Forcible Sodomy [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly committed a sexual act involving any touching of the skin, however slight, of the genitals of one person and the mouth or anus of another;
3. Without (VICTIM’S NAME)’s consent; and
4. (DEFENDANT’S NAME) acted with intent, knowledge or recklessness that (VICTIM’S NAME) did not consent.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

State v. Barela, 2015 UT 22

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Although the committee believes that the applicable mens rea as to element 4 would be knowledge or recklessness, it has included intent based on the Utah Supreme Court’s opinion in State v. Barela.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1610 Sodomy on a Child.

(DEFENDANT’S NAME) is charged [in Count ___] with committing Sodomy on a Child [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly committed a sexual act with (MINOR’S INITIALS), involving any touching, however slight, of the genitals of one person and the mouth or anus of another, even if accomplished through clothing; and
3. (MINOR’S INITIALS) was under the age of 14 at the time of the conduct.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

State v. Martinez, 2000 UT App 320

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1611 Forcible Sexual Abuse.

(DEFENDANT’S NAME) is charged [in Count__] with committing Forcible Sexual Abuse [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly:
   1. [touched ([VICTIM’S NAME] [MINOR’S INITIALS])’s anus, buttocks, or genitals, even if accomplished through the clothing;] or
   2. touched ([FEMALE VICTIM’S NAME] [FEMALE MINOR’S INITIALS])’s breast, even if accomplished through the clothing;] or
   3. [took indecent liberties with ([VICTIM’S NAME] [MINOR’S INITIALS]);] or
   4. [caused a person to take indecent liberties with (DEFENDANT’S NAME) or another;] and
3. Without (VICTIM’S NAME)’s consent;
4. (DEFENDANT’S NAME) acted with intent, knowledge, or recklessness that (VICTIM’S NAME) did not consent; and
5. Did so with the intent to:
   1. [cause substantial emotional or bodily pain to any person;] or
   2. [arouse or gratify the sexual desire of any person;] and
6. ([VICTIM’S NAME] [MINOR’S INITIALS]) was 14 years of age or older at the time of the conduct.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

If there was a prior conviction or serious bodily injury, a special verdict form may be necessary. See SVF 1617, Sexual Offense Prior Conviction or SVF 1618, Serious Bodily Injury.

Amended Dates:

CR1612 Sexual Abuse of a Child.

(DEFENDANT’S NAME) is charged [in Count__] with committing Sexual Abuse of a Child [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly:
1. [touched the anus, buttocks, or genitals of (MINOR’S INITIALS), even if accomplished through clothing]; or
2. [touched (MINOR’S INITIALS)’s breast, even if accomplished through clothing]; or
3. [took indecent liberties with (MINOR’S INITIALS)]; or
4. [caused (MINOR’S INITIALS) to take indecent liberties with (DEFENDANT’S NAME) or another]; and

3. Did so with the intent to:
1. [cause substantial emotional or bodily pain to any person]; or
2. [arouse or gratify the sexual desire of any person]; and

4. (MINOR’S INITIALS) was under 14 years old at the time of the conduct.

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

State v. Barela, 2015 UT 22

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Amended Dates:

CR1613 Aggravated Sexual Abuse of a Child.

(DEFENDANT’S NAME) is charged [in Count__] with committing Aggravated Sexual Abuse of a Child [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:

1. (DEFENDANT’S NAME);
2. Intentionally, knowingly, or recklessly:
1. [touched the anus, buttocks, or genitals of (MINOR’S INITIALS), even if accomplished through clothing]; or
2. [touched (MINOR’S INITIALS)’s breast, even if accomplished through clothing]; or
3. [took indecent liberties with (MINOR’S INITIALS)]; or
4. [caused (MINOR’S INITIALS) to take indecent liberties with (DEFENDANT’S NAME) or another]; and

3. Did so with the intent to:
1. [cause substantial emotional or bodily pain to any person]; or
2. [arouse or gratify the sexual desire of any person]; and

4. (MINOR’S INITIALS) was under 14 years old at the time of the offense; and
5. [You find that at least one of the following aggravating circumstances applies:]
1. [(DEFENDANT’S NAME) intentionally, knowingly, or recklessly [used a dangerous weapon] [used force, duress, violence, intimidation, coercion, menace, or threat of harm] [or committed the offense during the course of a kidnapping]];
2. [(DEFENDANT’S NAME) intentionally, knowingly, or recklessly caused bodily injury or severe psychological injury to (MINOR’S INITIALS) during or as a result of the offense];
3. [(DEFENDANT’S NAME) was a stranger to (MINOR’S INITIALS) or made friends with (MINOR’S INITIALS) for the purpose of committing the offense];
4. [(DEFENDANT’S NAME) intentionally, knowingly, or recklessly [used or showed pornography] [caused (MINOR’S INITIALS) to be photographed in a lewd condition during the course of the offense]];
5. [(DEFENDANT’S NAME) was convicted of a sexual offense prior to this trial];
6. [(DEFENDANT’S NAME) committed a similar sexual act upon two or more victims at the same time or during the same course of conduct];
7. [(DEFENDANT’S NAME) has committed six or more separate acts that would each constitute a sexual offense];
8. [(DEFENDANT’S NAME) was in a position of special trust in relation to (MINOR’S INITIALS)];
9. [(DEFENDANT’S NAME) intentionally, knowingly, or recklessly encouraged, aided, allowed, or benefitted from [acts of prostitution or sexual acts by (MINOR’S INITIALS) with any other person, or sexual performance by (MINOR’S INITIALS) before any other person] [human trafficking, or human smuggling]]; or
10. [(DEFENDANT’S NAME) intentionally, knowingly, or recklessly caused the penetration, however slight, of (MINOR’S INITIALS)’s genital or anal opening with any part of the human body other than the genitals or mouth].

After you carefully consider all the evidence in this case, if you are convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant GUILTY. On the other hand, if you are not convinced that each and every element has been proven beyond a reasonable doubt, then you must find the defendant NOT GUILTY.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

If more than one aggravating circumstance applies, the jury should also be given SVF 1613, Aggravated Sexual Abuse of a Child.

In regard to subpart 5.f., the committee considered the use of the word “victims” in light of State v. Vallejo, 2019 UT 38, ¶¶ 99-102, but chose to preserve the language set forth in the statute. Any attempt to alter the instruction in an effort to avoid the use of the word “victims” appears to impermissibly change the meaning of the statute.

Amended Dates:

CR1614 Aggravated Sexual Assault.

See Committee Note

References

Committee Notes

Because there are numerous variations of aggravated sexual assault that are case specific and complex, the committee determined that a model jury instruction would not be practical and may be confusing to practitioners. Practitioners should look to the format of other elements instructions and special verdict forms to assist them in developing their own instructions and verdict forms on aggravated sexual assault.

Amended Dates:

CR1615 Consent.

(DEFENDANT’S NAME) has been charged with (name of offense). The prosecution must prove beyond a reasonable doubt that [(VICTIM’S NAME)][(MINOR’S INITIALS)] did not consent to the alleged sexual conduct.

Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn at any time before or during sexual activity.

The alleged sexual conduct is without consent of [(VICTIM’S NAME)] [(MINOR’S INITIALS)] under any, all, or a combination of the following circumstances:

• [(VICTIM’S NAME)][(MINOR’S INITIALS)] expressed lack of consent through words or conduct;]
• [(DEFENDANT’S NAME) overcame [(VICTIM’S NAME)][(MINOR’S INITIALS)] through the application of physical force or violence;]
• [(DEFENDANT’S NAME) overcame [(VICTIM’S NAME)][(MINOR’S INITIALS)] through concealment or by the element of surprise;]
• [(DEFENDANT’S NAME) coerced [(VICTIM’S NAME)][(MINOR’S INITIALS)] to submit by threatening immediate or future retaliation against [(VICTIM’S NAME)][(MINOR’S INITIALS)] or any person, and [(VICTIM’S NAME)][(MINOR’S INITIALS)] thought at the time that (DEFENDANT’S NAME) had the ability to carry out the threat;]
• [(DEFENDANT’S NAME) knew [(VICTIM’S NAME)][(MINOR’S INITIALS)] was unconscious, unaware that the act was occurring, or was physically unable to resist;]
• [(DEFENDANT’S NAME) knew that as a result of mental illness or defect, or for any other reason [(VICTIM’S NAME)][(MINOR’S INITIALS)] was incapable at the time of the act of either understanding the nature of the act or of resisting it;]
• [(DEFENDANT’S NAME) knew that [(VICTIM’S NAME)][(MINOR’S INITIALS)] participated because [(VICTIM’S NAME)][(MINOR’S INITIALS)] incorrectly believed that (DEFENDANT’S NAME) was someone else;]
• [(DEFENDANT’S NAME) intentionally impaired [(VICTIM’S NAME)][(MINOR’S INITIALS)]’s power to understand or control [(VICTIM’S NAME)][(MINOR’S INITIALS)]’s conduct by giving [(VICTIM’S NAME)][(MINOR’S INITIALS)] a substance without [(VICTIM’S NAME)][(MINOR’S INITIALS)]’s knowledge;]
• [(MINOR’S INITIALS) was younger than 14 years old at the time of the act;]
• [At the time of the act, (MINOR’S INITIALS) was younger than 18 years old and (DEFENDANT’S NAME) was (MINOR’S INITIALS)’s parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to (MINOR’S INITIALS);]
• [(MINOR’S INITIALS) was 14 years old or older, but younger than 18 years old, and (DEFENDANT’S NAME) was more than three years older than (MINOR’S INITIALS) and enticed or coerced (MINOR’S INITIALS) to submit or participate, under circumstances not amounting to physical force or violence or the threat of retaliation;]
• [(DEFENDANT’S NAME) was a health professional or religious counselor who committed the act under the guise of providing professional diagnosis, counseling or treatment, and at the time of the act [(VICTIM’S NAME)][(MINOR’S INITIALS)] reasonably believed the act was for professionally appropriate reasons, so that [(VICTIM’S NAME)][(MINOR’S INITIALS)] could not reasonably be expected to have expressed resistance.]

In deciding lack of consent, you are not limited to the circumstances listed above. You may also apply the common, ordinary meaning of consent to all of the facts and circumstances of this case.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Amended Dates:

CR1616A Conduct Sufficient to Constitute Sexual Intercourse for Unlawful Sexual Activity with a Minor, Unlawful Sexual Conduct with a 16 or 17 year old, or Rape.

You are instructed that any sexual penetration of the penis between the outer folds of the labia, however slight, is sufficient to constitute "sexual intercourse" for purposes of the offense of [Unlawful Sexual Activity with a Minor] [Unlawful Sexual Conduct with a 16 or 17 Year Old] [Rape].

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Amended Dates:

CR1616B Conduct Sufficient to Constitute Sexual Intercourse for Rape of a Child.

For purposes of Rape of a Child, sexual intercourse can be accomplished by any touching, however slight.

References

Amended Dates:

CR1617 Sexual Offense Prior Conviction.

Having found (DEFENDANT’S NAME) guilty of [Rape][Rape of a Child][Object Rape][Object Rape of a Child][Forcible Sodomy][Sodomy on a Child][Aggravated Sexual Abuse of a Child][Aggravated Sexual Assault] [as charged in Count ____], you must now determine whether at the time (DEFENDANT’S NAME) committed this offense, [he][she] had been previously convicted of a grievous sexual offense.

“Grievous sexual offense” means [rape][rape of a child][object rape][object rape of a child][forcible sodomy][sodomy on a child][aggravated sexual abuse of a child][aggravated sexual assault], or any attempt to commit the offense.

The State must prove beyond a reasonable doubt that the defendant was previously convicted of a grievous sexual offense. Your decision must be unanimous and should be reflected on the special verdict form.

References

Committee Notes

Utah law does not state whether a determination that a prior conviction for an out-of-state offense is sufficiently similar to a Utah offense to prove a prior conviction is a question of law or fact. In either case, further jury instructions will be required.

However, at least one other jurisdiction has held that the determination is a legal one, and one that should be made by the trial court, not the jury. State v. Henderson, 689 S.E.2nd 462, 465 (N.C.App. 2009).

Amended Dates:

CR1618 Serious Bodily Injury.

If you find the defendant guilty of [Rape][Rape of a Child][Object Rape][Object Rape of a Child] [Sodomy][Sodomy on a Child][Forcible Sexual Abuse][Aggravated Sexual Abuse of a Child] [as charged in Count ____], you then must determine whether the defendant, in the course of committing [Rape][Rape of a Child][Object Rape][Object Rape of a Child][Sodomy][Sodomy on a Child][Forcible Sexual Abuse][Aggravated Sexual Abuse of a Child], caused serious bodily injury to another.

“Serious bodily injury” means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.

References

Committee Notes

This instruction contains bracketed language which suggests optional language. Please review and edit before finalizing the instruction.

Amended Dates: