7.4-4 Affirmative Defense to Obscenity as to Minors -- § 53a-196 (c)
Revised to December 1, 2007
The state has the burden of proving beyond a reasonable doubt that the defendant committed the crime of obscenity as to minors. If you are satisfied that the state has proved these elements beyond a reasonable doubt, you must still consider whether the defendant has proved by a preponderance of the evidence (his/her) affirmative defense.
<Insert Affirmative Defense, Instruction 2.9-1.>
This statute defining this defense provides as follows:
in any prosecution for obscenity as to minors, it shall be an affirmative defense that the defendant made (1) a reasonable mistake as to age, and (2) a reasonable bona fide attempt to ascertain the true age of such minor, by examining a draft card, driver's license, birth certificate or other official or apparently official document, exhibited by such minor, purporting to establish that such minor was seventeen years of age or older.
If there is any doubt or question about the minor's age, the defendant is required to ask the minor to exhibit a draft card, driver's license, or some other certificate that would attest to the age of the person. If such document or certificate is exhibited to the defendant, and it reasonably purports to show that the minor involved is seventeen years old or more, you may find, but are not required to do so, that the defendant made a reasonable bona fide attempt to ascertain the age of the other person. It does not prevent the use of this defense even if it might subsequently develop that the document was forged or was actually the property of another and not that of the bearer.
<Substitute for the concluding paragraph in the offense instruction.> If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of obscenity as to minors, you shall then find the defendant not guilty and not consider (his/her) affirmative defense.
unanimously find that the state has proved beyond a
reasonable doubt each of the elements, then you shall
consider the defendant's affirmative defense. If you
unanimously find that the defendant has proved (his/her)
affirmative defense by a preponderance of the evidence,
then you shall find the defendant not guilty. If you
unanimously find that the defendant has not proved
(his/her) affirmative defense by a preponderance of the
evidence, then you shall find the defendant guilty.