CR27-246 01/12/23

SEXUAL ASSAULT (SUBSTANTIAL IMPAIRMENT) – 13 V.S.A. § 3252(b)(2)

The State has charged (Def)_______________ with sexual assault, 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) engaged in a sexual act with (victim)_______________;

(3) [he] [she] did so when (victim)_______________ was incapable of consenting to the sexual act due to substantial impairment by [alcohol] [drugs] [intoxicants];

(4) (Def)_______________ knew or reasonably should have known that (victim)_______________ was substantially impaired by [alcohol] [drugs] [intoxicants]; and

(5) (Def)_______________ acted intentionally.

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

The second essential element is that (Def)_______________ 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] [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.]

The third essential element is that the sexual act took place at a time when (victim)_______________ was incapable of consenting to the sexual act due to substantial impairment by [alcohol] [drugs] [intoxicants]. Incapable of consenting means the person: is incapable of understanding the nature of the conduct at issue; is physically incapable of resisting, declining participation in, or communicating unwillingness to engage in the conduct at issue; or lacks the mental ability to make or communicate a decision about whether to engage in the conduct at issue.

The fourth essential element is that (Def)_______________ knew or reasonably should have known that (victim)_______________ was substantially impaired by [alcohol] [drugs] [intoxicants]. The State must have proven that (Def)_______________ had actual knowledge that (victim)_______________ was substantially impaired by [alcohol] [drugs] [intoxicants]. Actual knowledge may be proven by direct or circumstantial evidence.  You may consider all of the surrounding circumstances in deciding whether (Def)_______________ had actual knowledge.

The last essential element is that (Def)_______________ acted intentionally. [He] [She] must have acted purposely, and not inadvertently, because of mistake, or by accident. You may find that (Def)_______________ acted intentionally if it was [his] [her] conscious objective to engage in a sexual act with (victim)_______________ when (victim)_______________ was incapable of consenting to the sexual act due to substantial impairment by [alcohol] [drugs] [intoxicants], and that condition was known or reasonably should have been known by (Def)_______________.

A person’s intent may be shown by the way in which the person 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.

Here the State alleges that (Def)_______________ intentionally engaged in a sexual act with (victim)_______________ when [he] [she] had (specific allegations)_______________.

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.