T.P.I. -- CRIM. 19.03

ABORTION PERFORMED ON NON-RESIDENT

            Any person who performs an abortion upon any pregnant woman who is not a resident of Tennessee 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)  that the defendant performed an abortion upon a pregnant woman;

and

            (2)  that the said woman was not a bona fide resident     of Tennessee;

and

            (3)  that the defendant acted either intentionally, knowingly or recklessly.²

            "Abortion" means the administration to any woman pregnant with child, whether such child be quick or not, of any medicine, drug, or substance whatever, or the use or employment of any instrument, or other means whatever, with the intent to destroy such child, thereby destroying such child before its birth.³

            [A "quick" child means one that has developed so that it moves within the mother's uterus.]⁴

            "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.⁵

            "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.⁶

            "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.⁷

FOOTNOTES

  1.  Tenn. Code Ann. § 39-15-201(d).

  2.  Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing

       Commission Comment.

  3.  Tenn. Code Ann. § 39-15-201(a)(1).

  4.  Black's Law Dictionary (5th Ed. 1979).

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

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

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

COMMENTS

                 1.  Performing an abortion upon any pregnant woman who is not a resident of Tennessee is a Class C felony.  Tenn. Code Ann. § 39-15-201(d) and (b)(1).

                 2.  If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.  Tenn. Code Ann. § 39-11-301(c).  The Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" should all be charged for this offense. 

                 3.  The trial judge may want to instruct on Accomplice.  See T.P.I. -- CRIM. 42.09.