Criminal Jury Instructions Home

7.1-13  Affirmative Defense to Sexual Assault -- § 53a-67

Revised to December 1, 2007 (modified June 13, 2008)

The state has the burden of proving beyond a reasonable doubt that the defendant committed each of the elements of the crime of <insert specific offense> as I have defined them for you.  If you are satisfied that the state has proved these elements beyond a reasonable doubt, you must still consider whether the defendant has proved (his/her) affirmative defense.

<Insert Affirmative Defense, Instruction 2.9-1.>

A.  Affirmative defense under § 53a-67 (a):

The statute defining this defense provides as follows: 

in any prosecution for <insert specific offense> based on the complainant's being mentally defective, mentally incapacitated or physically helpless, it shall be an affirmative defense that the defendant at the time (he/she) engaged in the conduct constituting the offense, did not know of such condition of the complainant.

Conclusion

<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, you shall then find the defendant not guilty and not consider (his/her) affirmative defense.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of <insert specific offense>, then you shall consider the defendant's affirmative defense.  If you unanimously find that the defendant has proved by a preponderance of the evidence that (he/she) did not know at the time of the offense that the complainant was (mentally defective / mentally incapacitated / physically helpless), 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.

B.  Affirmative defense under § 53a-67 (b):

Note:  This defense does not apply to §§ 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a, 53a-72b.  It thus applies only to fourth degree sexual assault (§ 53a-73a).

The statute defining this defense provides as follows: 

in any prosecution for <insert specific offense> it shall be an affirmative defense that the defendant and the complainant were, at the time of the alleged offense, living together by mutual consent in a relationship of cohabitation, regardless of the legal status of their relationship.

The defendant claims that (he/she) and the complainant were, at the time of the alleged offense, living together by mutual consent in the relationship of cohabitation.  "Cohabitation" means actually living together by mutual consent in a relationship of cohabitation, regardless of the legal status of their relationship.  Simply living together is not sufficient.  The relationship of cohabitation includes all of the many facets of married life in addition to sexual relations.  There must be a mutual assumption of the marital rights, duties, and obligations that are usually manifested by married people.¹

Conclusion

<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, you shall then find the defendant not guilty and not consider (his/her) affirmative defense.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of <insert specific offense>, then you shall consider the defendant's affirmative defense.  If you unanimously find that the defendant has proved by a preponderance of the evidence that the defendant and the complainant were living together by mutual consent in a relationship of cohabitation, 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.
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¹ This definition of cohabitation is intended to include a civil union.  See State v. Arroyo, 181 Conn. 426, 432-33 (1980); State v. Cayoutte, 25 Conn. App. 384, 391 (1991).