Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

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Monday, June 3, 2019

2C:34-5(a) model jury charge

2C:34-5(a) model jury charge


DISEASED PERSON COMMITTING AN ACT OF SEXUAL PENETRATION(Venereal Disease)

N.J.S.A.2C:34-5(a)model jury charge
(Defendant) is charged with committing an act of sexual penetration while infected with a venereal disease.The indictment charging this offense reads:
[READ INDICTMENT]
The statute prohibiting this conduct provides, in pertinent part:

A person is guilty of a crime if he/she, knowing that he or she is infected with a venereal disease[CHOOSE AS APPROPRIATE]:such as chancroid, gonorrhea, syphilis, herpes virus, or any of the varieties or stages of such diseases, commits an act of sexual penetration without the informed consent of the other person.

For (defendant) to be guilty of this crime, the State must prove each of the following elements beyond a reasonable doubt:
First that at the time charged in the indictment (defendant) was infected with(CHOOSE SPECIFIC DISEASE),or a variety or stage thereof.
Second, that, at that time, (defendant) knew that he/she was so infected;
Third, that, at that time, (defendant) committed an act of sexual penetration with (another person).
Fourth, that (the other person) did not provide (defendant) with his/her informed consent.
The first element that the State must prove beyond a reasonable doubt is that (defendant) was infected with (a venereal disease), or any variety or stage thereof on [date].
The second element that the State must prove beyond a reasonable doubt is that (defendant) knew that he/she was so infected. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their existence.A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. Knowing, with knowledge, and other equivalent terms have the same meaning.
Knowing is a state of mind. It cannot be seen. Often, it can be proved only by inference drawn from conduct, words, and acts, as well as surrounding circumstances. Therefore, it is not necessary that the State present testimony that (defendant) said that he/she had a certain state of mind when he/she did something.It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of (defendants) acts and conduct, from all that he/she said and did at the particular time and place, and from all surrounding circumstances.
The third element that the State must prove beyond a reasonable doubt is that (defendant) engaged in sexual penetration with (another person).Sexual penetration means [SELECT APPROPRIATE TERMS:vaginal intercourse, cunnilingus[1], fellatio[2], anal intercourse, or the insertion of the hand, finger, or object into the anus or vagina by (defendant) [WHERE APPROPRIATE ADD:or at his/her instruction]].Any amount of insertion, however slight, constitutes penetration; the depth of the insertion is not relevant.
The fourth element that the State must prove beyond a reasonable doubt is that (defendant) so acted without having the informed consent of the other person.Informed consent means the persons voluntary and knowing agreement to submit to an act of sexual penetration with a person having [the specified disease.The State must prove beyond a reasonable doubt that the victim was not informed of (the specified disease) with which (defendant) was infected.
If the State has proved each of these elements beyond a reasonable doubt, your verdict must be guilty of this charge. If, on the other hand, the State has failed to prove any of these elements beyond a reasonable doubt, your verdict must be not guilty.

[1]Cunnilingus, oral stimulation of the female sexual organ, is a form of sexual penetration even if one does not insert his/her tongue into the others vagina.
[2]Fellatio, oral stimulation of the male sexual organ, is a form of sexual penetration even if ones penis does not enter the others mouth.Placing the mouth of another person on the penis constitutes fellatio.

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