SEQ CHAPTER \h \r 1CR24-581 03/26/07

 

AGGRAVATED MURDER (PERPETRATING SEXUAL ASSAULT) - 13 V.S.A. § 2311(a)(8)

 

[Explanation: The statute, § 2311, lists 8 categories of aggravating factors.  When the defendant is charged with aggravated murder, the aggravation element is added to the underlying charge of murder under § 2301.  The following is a statement of the element to be added, plus a short explanation, for use when the above-described aggravating factor is charged.]

 

 

(__) (Def)_______________ committed the murder while [perpetrating] [attempting to perpetrate] a sexual assault.

 

The ______ essential element is that (Def)_______________ committed the murder while [perpetrating] [attempting to perpetrate] a sexual assault.

[If the charge is for an attempt, refer to the instruction for attempt, CR09-201.]

Before you may find that (Def)_______________ committed the murder while [perpetrating] [attempting to perpetrate] a sexual assault, the State must have proven, beyond a reasonable doubt, that on the date and at the place alleged:

(1) (Def)_______________;

(2) intentionally engaged in a sexual act with (victim)_______________;

(3) (Def)_______________ compelled (victim)_______________ to participate in the sexual act, by (specific acts)____________________; and

(4) that (Def)_______________ did not have (victim)________________’s consent.

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

The second essential element of sexual assault is that (Def)_______________ intentionally engaged in a sexual act with (victim)_______________.

A sexual act means conduct between persons consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another. The word contact, as used in this charge, means a touching, however slight. [The word vulva means the external genital organs of the female, including the labia majora, labia minora, clitoris, and the entrance to the vagina.]

You also must decide whether (Def)_______________ acted intentionally.  The intent with which a person does an act may be shown by the way in which the person expresses it to others, or by his or her conduct.  (Def)_______________ acted intentionally if [he] [she] acted purposely, and not inadvertently, because of mistake, or by accident.  You may find that [he] [she] acted intentionally if it was [his] [her] conscious objective to engage in a sexual act with (victim)_______________.  In determining (Def)_______________’s intent, you should consider all of the surrounding facts and circumstances established by the evidence.

The third essential element of sexual assault is that (Def)_______________ compelled (victim)_______________ to participate in the sexual act.  To compel means to deliberately use force, or to exert pressure, to overcome the will of the other person.  Here the State alleges that (Def)_______________ compelled (victim)_______________ by (specific acts)_______________.

The last essential element of sexual assault is that (Def)_______________ compelled (victim)_______________ to participate in the sexual act without [his] [her] consent.  Consent is defined as words or actions by the other person, indicating a voluntary agreement to do something.  [There is a significant legal difference between consenting to something, and submitting to force or fear of harm, or for some other reason.]  “Consent” means consent of the will. [ Submission under the influence of fear or pressure is not consent.] [Lack of consent may be shown if (Def)_______________ had sexual contact with (victim)_______________ without the opportunity for [him] [her] to consent.]  Lack of consent does not require proof of verbal or physical resistance.

Once again, as the last essential element of aggravated murder, the State must have proven that (Def)_______________ committed the murder while [he] [she] was [perpetrating] [attempting to perpetrate] a sexual assault.  All of the essential elements 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.