CR27-631 01/11/18

VOYEURISM (VIEWING OR RECORDING OF INTIMATE AREAS) – 13 V.S.A. § 2605(b)

The State has charged (Def)_______________ with voyeurism, 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.  Here, the essential elements are that on the date and at the place alleged,

(1) (Def)_______________;

(2) intentionally [viewed] [photographed] [filmed] [recorded in any format] the intimate areas of another person, (victim)_______________;

(3) without (victim)_______________’s knowledge and consent; and

(4) [while (victim)_______________ was in a place where [he] [she] would have a reasonable expectation of privacy] [under circumstances in which (victim)_______________ had a reasonable expectation of privacy].

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

The second essential element is that (Def)_______________ intentionally [viewed] [photographed] [filmed] [recorded in any format] the intimate areas of another person, (victim)_______________. [View means the intentional looking upon another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or a device designed or intended to improve visual acuity.] Intimate areas means the naked or undergarment-clad genitals, pubic area, buttocks, or female breast of a person. [Female breast means any portion of the female breast below the top of the areola.]

The State must have proven that (Def)_______________ [viewed] [photographed] [filmed] [recorded] the intimate areas of (victim)_______________ intentionally, which means 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 [view] [photograph] [film] [record] the intimate areas of (victim)_______________. 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 is that (Def)_______________ [viewed] [photographed] [filmed] [recorded] the intimate areas of (victim)_______________ without (victim)_______________’s knowledge and consent. 

The last essential element is that (Def)_______________ did so [while (victim)_______________ was in a place where [he] [she] would have a reasonable expectation of privacy. This means [a place in which a reasonable person would believe that he or she could disrobe in privacy, without his or her undressing being viewed by another] [or] [a place in which a reasonable person would expect to be safe from unwanted intrusion or surveillance].] [under circumstances in which (victim)_______________ had a reasonable expectation of privacy. This means circumstances in which a reasonable person would believe that his or her intimate areas would not be visible to the public, regardless of whether that person is in a public or private area. [This definition includes circumstances in which a person knowingly disrobes in front of another, but does not expect nor give consent for the other person to photograph, film, or record his or her intimate areas.]]

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 voyeurism if (Def)_______________ was a bona fide private investigator or bona fide security guard conducting surveillance in the ordinary course of business, and the violation was unintentional and incidental to otherwise legal surveillance.

(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.]