7.1-8 Sexual Assault in the Third Degree -- § 53a-72a (a) (1)
Revised to April 23, 2010
The defendant is charged [in count __] with sexual assault in the third degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of sexual assault in the third degree when such person compels another person to submit to sexual contact by <insert one or both1 of the following:>
use of force against such other person or a third person, [or]
the threat of the use of force against such other person or against a third person which reasonably causes such other person to fear physical injury to himself or herself or a third person.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Sexual contact
The first element is that there was sexual contact between the defendant and the complainant. "Sexual contact" means any contact by the defendant with the intimate parts of the complainant or contact of the intimate parts of the defendant with the complainant. "Intimate parts" means the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts. To constitute sexual contact there must be an actual touching. There need not be, however, direct contact with the unclothed body of the other person or the defendant. It is enough if the touching of the genital area, groin, anus, inner thighs, buttocks or breast was through the other person's clothing or the defendant's clothing.
Element 2 - Intent
The second element is that defendant had the specific intent to (obtain sexual gratification / degrade or humiliate the complainant).2 A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>
Element 3 - Use of force or threat of use of force
The third element is that the defendant compelled the complainant to submit to the sexual contact by <insert one or both of the following:>3
the use of force against the complainant or another party, [or]
the threat of the use of force against the complainant or another party which reasonably caused the complainant to fear physical injury to (himself / herself) or another party.
"Use of force" means the use of a dangerous instrument or the use of actual physical force or violence or superior physical strength against another person. <Include as appropriate:>
"Dangerous instrument" means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. It is important to note that the article need not be inherently dangerous; all that is required is that the article was capable of causing death or serious physical injury under the circumstances in which it was used. Any article or substance, without limitation and even though harmless under normal use, may be found by you to be a dangerous instrument if, under the circumstances of its use or threatened or attempted use, it is capable of producing serious physical injury or death. The state need not prove that in fact death or serious physical injury resulted, only that the instrument had that potential under the circumstances.
- It is not necessary for the state to prove that the defendant was armed with or used any weapon for you to find that the defendant used force. Use of force means that the defendant must have used actual physical force or violence or superior physical strength to compel the other person to submit to sexual contact.
- You may find a threat of the use of force because you find that a threat was actually expressed or you may find a threat implied from the circumstances and from what you find to have been the defendant's conduct. Any such threat must have been such that it reasonably caused the complainant to fear physical injury to (herself/himself/another person). "Physical injury" means impairment of physical condition or pain. Whether the fear of physical injury was reasonable is a question of fact for you to determine from the circumstance that you find existed at the time. <Reference if appropriate evidence concerning, e.g., any injury inflicted, relative sizes, place of occurrence, etc.>
- In this case, the state has charged that the sexual contact was compelled by both the use of force and by the threat of the use of force. These are the two methods by which compulsion may be demonstrated and proved. That element will be established as long as each of you finds it proved beyond a reasonable doubt that the contact was compelled either by the use of force or the threat of the use of force. Simply put, it is not necessary for the state to prove that the contact was compelled both by the use of force and by the threat of the use of force, as long as each one of you is satisfied that it was compelled by force or the threat of the use of force.4
In summary, the state must prove beyond a reasonable doubt that 1) sexual contact took place between the defendant and the complainant, 2) the defendant specifically intended to (obtain sexual gratification / degrade or humiliate the complainant), and 3) the defendant (used /threatened to use) force.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of sexual
assault in the third degree, then you shall find the defendant guilty. On the
other hand, if you unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall then find the defendant not
1 In State v. Chapman, 229 Conn. 529, 536-37 (1994), the court held that it was improper to instruct regarding the "use of force . . . or the threat of the use of force," when the defendant was charged only with the "use of force" and no evidence had been presented regarding the "threat of the use of force."
3 See footnote 1.
4 The "use of force" and the "threat of the use of force" are not conceptually distinct methods of compulsion for purposes of giving a unanimity instruction. State v. Tucker, 226 Conn. 618, 644-50 (1993).
Section 53a-82a (b) provides an enhanced penalty if the victim is under 16 years of age. The jury must find this fact proved beyond a reasonable doubt. See Sentence Enhancers, Instruction 2.11-4.