CR27-031                   03/03/06

LEWD AND LASCIVIOUS CONDUCT – 13 V.S.A. § 2601

            The State has charged (Def)_______________ with lewd and lascivious conduct, 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)        intentionally engaged in the conduct alleged in the charge, specifically ________________;

(3)        the conduct was open and gross; and

(4)        the conduct was also lewd and lascivious.

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

            The second essential element is that (Def)_______________ intentionally engaged in the conduct charged.  The intent with which a person does an act may be shown by the way in which he or she expresses it to others, or by his or her conduct.  In determining (Def)_______________’s intent, you should consider all of the surrounding facts and circumstances established by the evidence.

            The third essential element, open and gross, means that the alleged act was committed within the view of at least one non-consenting member of the public.  You may find that (Def)_______________’s acts were “open and gross” if they were committed in a public place, or you may find that (Def)_______________’s acts were “open and gross” if they were done openly in the presence of (victim)_______________, without (victim)_______________’s consent, whether or not the acts were in a public place.

Consent means words or actions by the other person indicating a voluntary agreement to do something or to participate in something.  “Consent” means consent of the will.  Lack of consent may be shown without proof of resistance.

            [(Victim)_______________ did not consent if (Def)_______________ knew that (victim)_______________ was mentally incapable of understanding the nature of the lewd and lascivious behavior.]

            [(Victim)_______________ did not consent if (Def)_______________ knew that (victim)_______________ was not physically capable of resisting, or declining consent to, the lewd and lascivious behavior.]

            [(Victim)_______________ did not consent if (Def)_______________ knew that (victim)_______________ was unaware that lewd and lascivious behavior was being committed.]

            [(Victim)_______________ did not consent if (Def)_______________ knew that (victim)_______________ was mentally incapable of resisting or declining to consent to the lewd and lascivious behavior, due to mental illness or mental retardation.  “Mental Illness” means a substantial disorder of thought, mood, perception, orientation, or memory, any of which grossly impairs the persons’s judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.  “Mental retardation” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior.]

            The last essential element, lewd and lascivious, means that (Def)_______________’s conduct was lustful, indecent, or sexual behavior that offends current morality in Vermont.  Lewdness is defined as “gross and wanton indecency in sexual relations,” whereas lascivious means “tending to excite lust.”  To determine whether (Def)_______________’s behavior was lewd and lascivious, you should apply your sense of the community standards of sexual decency, propriety, and morality.

            Here the State alleges that (Def)_______________ engaged in open and gross behavior which was also lewd and lascivious, by (specific acts)____________________.

            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.