T.P.I. -- CRIM. 10.03

AGGRAVATED SEXUAL BATTERY

            Any person who commits the offense of aggravated sexual battery is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

            (1)  [the defendant had unlawful sexual contact with the alleged victim in

                   which the defendant intentionally touched the alleged victim’s intimate

                   parts, or the clothing covering the immediate area of the alleged

                   victim’s intimate parts2] [that the alleged victim had unlawful sexual

                   contact with the defendant in which the victim intentionally touched

                   the defendant’s, or any other person’s intimate parts, or the clothing

                   covering the immediate area of the defendant’s, or any other person’s

                   intimate parts3];

 and

            (2)(a)  that force or coercion was used to accomplish the act, and the

                       defendant was armed with a weapon or any article used or

                       fashioned in a manner to lead the alleged victim reasonably

                       to believe it to be a weapon;

or

                 (b) that the defendant caused bodily injury to the alleged victim;

or

                 (c) that the defendant was aided or abetted by one (1) or more

                       persons;4

and

                            (1)  that force or coercion was used to accomplish the act;

or

                            (2)  that the defendant knew, or had reason to know, that the

                                    alleged victim was mentally defective, mentally incapacitated

                                    or physically helpless;

or

                 (d) that the alleged victim was less than thirteen (13) years of age;

and

            (3)  that the defendant acted either intentionally, knowingly or recklessly.5               [See footnotes 2 and 5 below].

            "Sexual contact" includes the intentional touching of the alleged victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the alleged victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.6

            "Intimate parts" includes the primary genital area, groin, inner thigh, buttock or breast of a human being.7

            ["Force" means compulsion by the use of physical power or violence.]8

            ["Coercion" means threat of kidnapping, extortion, force or violence to be performed immediately or in the future or the use of parental, custodial or official authority over a child less than fifteen (15) years of age.]9

            "Victim" means the person alleged to have been subjected to criminal sexual conduct.10

            ["Bodily injury" includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty.]11

            ["Mentally defective" means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.]12

            ["Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.]13

            ["Physically helpless" means that a person is unconscious, asleep or for any other reason is physically or verbally unable to communicate unwillingness to do an act.]14

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.15


            "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.16

            "Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.17


FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-504(a).

  2.  State v. Howard, 926 S.W.2d 579, 587 (Tenn. Crim. App. 1996),

       holds that the mental state of this element must be set out clearly in the

       instructions, because the elements of sexual battery contain different

       culpable mental states.  See also State v. Parker, 887 S.W.2d 825, 827

       (Tenn. Crim. App. 1994) and footnote 5.

  3.  Id.

  4.  Refer to Tenn. Code Ann. § 39-11-402 and T.P.I. -- CRIM. 3.01 (criminal

       responsibility for the conduct of another).  The trial judge may want to

       charge former T.P.I. -- CRIM. 3.02 (Aiding and Abetting).  See Comment 3.

 5.   Although the statutes expressly provide that the sexual contact must be

       intentional, they neither set out nor plainly dispense with the culpable mental

       state required for the other elements of this offense, so that mere reckless

       conduct is sufficient.  State v. Parker, 887 S.W.2d 825, 827 (Tenn. Crim.

       App. 1994)

  6.  Tenn. Code Ann. § 39-13-501(6).

  7.  Tenn. Code Ann. § 39-13-501(2).

  8.  Tenn. Code Ann. § 39-11-106(a)(12).

  9.  Tenn. Code Ann. § 39-13-501(1).

10.  Tenn. Code Ann. § 39-13-501(8).

11.  Tenn. Code Ann. § 39-11-106(a)(2).

12.  Tenn. Code Ann. § 39-13-501(3).

13.  Tenn. Code Ann. § 39-13-501(4).

14.  Tenn. Code Ann. § 39-13-501(5).

15.  Tenn. Code Ann. § 39-11-106(a)(18).

16.  Tenn. Code Ann. § 39-11-106(a)(20).

17.  Tenn. Code Ann. § 39-11-106(a)(31).

COMMENTS

                 1.  Aggravated sexual battery is a Class B felony.  Tenn. Code Ann. § 39-13-504(b).

            2.  A violation of Tenn. Code Ann. § 39-15-401, child abuse and neglect, may be a lesser included offense of aggravated sexual battery.  Tenn. Code Ann. § 39-15-401(d).

            3.  Former T.P.I. -- CRIM. 3.02 (Aiding and Abetting) reads as follows:

All persons aiding and abetting, or ready and consenting to aid and abet in any criminal offense, shall be guilty of a crime.  An aider and abettor is one who advises, counsels, procures or encourages another to commit a crime.

The law does not require a strict, actual eyewitness presence at the scene of the crime.  Only a constructive presence is necessary to charge one as an aider and abettor.  As a general rule, one is deemed to be constructively present if he or she is at the time performing any act in the furtherance of a felony, or is in a position to give information which would prevent others from discouraging and stopping the perpetrator.  It is immaterial at what distance the alleged aider and abettor may be from the scene of the crime. A very common example of constructive presence is where one, at the scene of the crime, "keeps watch" in order to give warning of the approach of danger, or provides transportation so as to facilitate the escape of the actual perpetrator of the crime.

Constructive or actual presence, however, is not sufficient to make one a principal of the crime.  There must be some evidence, at least circumstantial, that the defendant knowingly participated in the crime.  The defendant must have had knowledge of the crime being committed, and an intent to aid and abet.  An aider and abettor who has knowledge of the principal's unlawful intent and assists the principal, is guilty in the same degree as the principal.  When the aider and abettor does not share in the principal's intent, however, but is controlled by his or her own intent, the degree of guilt of the aider and abettor is not necessarily that of the principal.  In determining the degree of the defendant's guilt, you should consider [his] [her] criminal intent and not the intent and degree of guilt of the principal offender whom the defendant is accused of aiding and abetting. (footnotes omitted).