CR28-111 01/12/18

CRUELTY TO A CHILD (FELONY) -- 13 V.S.A. § 1304(b)

The State has charged (Def)_______________ with cruelty to a child, 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) willfully [[assaulted] [ill treated] [neglected] [abandoned] [exposed] (victim)_______________]

[caused (victim)_______________ to be [assaulted] [neglected] [abandoned] [exposed]]

[procured the [assault] [neglect] [abandonment] [exposure] of (victim)_______________];

(3) in a manner to [cause (victim)_______________ unnecessary suffering] [endanger (victim)_______________’s health];

(4) at the time, (Def)_______________ was over the age of 16;

(5) at the time, (victim)_______________ was a child;

(6) at the time, (Def)_______________ had [custody] [charge] [care] of (victim)_______________; and

(7) (victim)_______________ [died] [suffered serious bodily injury] [was subjected to sexual conduct] as a result of (Def)_______________’s actions.

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

The second essential element is that (Def)_______________ willfully [[assaulted] [ill treated] [neglected] [abandoned] [exposed] (victim)_______________]

[caused (victim)_______________ to be [assaulted] [neglected] [abandoned] [exposed]]

[procured the [assault] [neglect] [abandonment] [exposure] of (victim)_______________].

As part of the second essential element, the State must have proven that (Def)_______________ acted willfully. (Def)_______________ must have acted intentionally, and not inadvertently, because of mistake, or by accident.

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 term assault means that (Def)_______________ willfully [caused bodily injury to (victim)_______________] [placed (victim)_______________ in fear of bodily injury]. The term bodily injury means any physical pain, illness or any impairment of physical condition.]

[Here the term ill treatment means behavior toward another person that is intended to bring about unnecessary suffering or distress.]

[Here the term neglect means a failure to care for, protect, or support another person.]

[To abandon a child means to desert the child, thereby violating a duty to provide for the child’s care, protection or support.]

[Here the word expose means to place the child in a position that was open to danger.]

[To procure means to get and make available for a particular purpose.]

Here the State alleges that (Def)_______________ (re-state the actions charged)_____ _______________________________________, by (specific acts)__________________.

The third essential element is that (Def)_______________ acted in a manner to [cause (victim)_______________ unnecessary suffering] [endanger (victim)_______________’s health].

The fourth essential element is that, at the time of the alleged offense, (Def)_______________ was over the age of 16.

The fifth essential element is that, at the time of the alleged offense, (victim)_______________ was a child. The State need not have proven that (Def)_______________ knew (victim)_______________ was a child.

The sixth essential element is that, at the time of the alleged offense, (Def)_______________ had [custody] [charge] [care] of (victim)_______________. This means that (Def)_______________ had a duty to care for (victim)_______________, as a person responsible for [his] [her] care.

The last essential element is that, as a result of [the alleged offense], (victim)_______________ [died] [suffered serious bodily injury] [was subjected to sexual conduct].

[Serious bodily injury means [bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement] [strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person]. [The term bodily injury means physical pain, illness or any impairment of physical condition.]]

[Here the term sexual conduct means:]

[any conduct involving contact between the penis and the vulva, the penis and the penis, the penis and the anus, the mouth and the penis, the mouth and the anus, the vulva and the vulva or 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 with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desire of any person.]

[any intentional touching, not through the clothing, of the genitals, anus or breasts of another with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desire of any person.]

[masturbation.]

[bestiality.]

[sadomasochistic abuse for sexual purposes.]

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.

[In this case there is an additional issue regarding the defense of reasonable fear.  If you find that the State has proven all of the essential elements of cruelty to a child, beyond a reasonable doubt, you will need to consider this defense.  But, if the State has not proven all of the essential elements of cruelty to a child, then you must return a verdict of “not guilty,” and your job is done.

It is a defense to the crime of cruelty to a child if (Def)_______________ engaged in the charged conduct because of a reasonable fear that he or she or another person would suffer death, bodily injury, serious bodily injury, or sexual assault.]

[Serious bodily injury means [bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement] [strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person]. [The term bodily injury means physical pain, illness or any impairment of physical condition.]]

[Sexual assault is when a person engages in a sexual act with another person and compels the other person to participate in the sexual act: (1) without the consent of the other person; or (2) by threatening or coercing the other person; or (3) by placing the other person in fear that any person will suffer imminent bodily injury.]

[(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.]