Proposed Jury Instructions for Sexual Assault

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

1.     The Defendant, ______________________________,
2.     in _______________ County, West Virginia,
3.     on or about the _____ day of _______________, 199__, 
4.     did engage in (sexual intercourse) (sexual intrusion),
5.     with another person, ______________________________,
6.     without the consent of ______________________________,
7.     and in doing so he did inflict serious bodily injury upon ______________________________.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault In the First Degree, you may find ______________________________ guilty of Sexual Assault In the First Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault In the First Degree, you shall find the Defendant ______________________________ not guilty.

    "Deadly Weapon" means any instrument, device or thing capable of inflicting death or serious bodily injury, and designed or specially adapted for use as a weapon, or possessed, carried or used as a weapon.
    Lack of Consent: results from: (1) Forcible Compulsion, or (2) incapacity to consent, and a person is deemed incapable to consent when such person is: [1] less than sixteen years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault In the First Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _________________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________,
6.      without the consent of ______________________________,
7.      and in doing so he did employ a deadly weapon, to-wit: _________________________.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault In the First Degree, you may find ______________________________ guilty of Sexual Assault In the First Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault In the First Degree, you shall find the Defendant ______________________________ not guilty.

1.      W.Va. Code, §61-8B-3, "Sexual Assault In The First Degree".
2.      W.Va. Code, §61-8B-1, "Definition of Terms".
3.      W.Va. Code, §61-8B-2, "Lack of Consent".
4.      State v. Rummer, 432 S.E. 2d 39 (W.Va. 1993); State v. Lola Mae C., 185 W.Va. 452, 408 S.E. 2d 31 (1991); State v. Carter, 168 W.Va. 90, 282 S.E. 2d 277 (1981). The commission of sexual intercourse as defined, in separate ways constitutes separate offenses under W.Va. Code §61-8B-3.

    "Deadly Weapon" means any instrument, device or thing capable of inflicting death or serious bodily injury, and designed or specially adapted for use as a weapon, or possessed, carried or used as a weapon.
    Lack of Consent: results from: (1) Forcible Compulsion, or (2) incapacity to consent, and a person is deemed incapable to consent when such person is: [1] less than sixteen years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault In the First Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________, she being eleven years old or less,
6.      And the Defendant ______________________________ being fourteen years old or more.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault In the First Degree, you may find ______________________________ guilty of Sexual Assault In the First Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault In the First Degree, you shall find the Defendant ______________________________ not guilty.

1.      W.Va. Code, §61-8B-3, "Sexual Assault In The First Degree".
2.      W.Va. Code, §61-8B-1, "Definition of Terms".
3.      W.Va. Code, §61-8B-2, "Lack of Consent".
4.      State v. Rummer, 432 S.E. 2d 39 (W.Va. 1993); State v. Lola Mae C., 185 W.Va. 452, 408 S.E. 2d 31 (1991); State v. Carter, 168 W.Va. 90, 282 S.E. 2d 277 (1981). The commission of sexual intercourse as defined, in separate ways constitutes separate offenses under W.Va. Code §61-8B-3.

years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault In The Second Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________,
6.      without the consent of ______________________________,
7.      which lack of consent results from forcible compulsion.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault In The Second Degree, you may find ______________________________ guilty of Sexual Assault In The Second Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault In The Second Degree, you shall find the Defendant ______________________________ not guilty.

1.      W.Va. Code, §61-8B-4, "Sexual Assault In The Second Degree".
2.      W.Va. Code, §61-8B-1, "Definition of Terms".
3.      W.Va. Code, §61-8B-2, "Lack of Consent".
4.      State v. George W.H., 439 S.E. 2d 423 (W.Va. 1993); State v. Sayre, 183 W.Va. 376, 395 S.E. 2d 799 (1990); State v. Davis, 180 W.Va. 357, 376 S.E. 2d 563 (1988).

years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault of the Second Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________,
6.      without the consent of ______________________________,
7.      she being physically helpless.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault of the Second Degree, you may find ______________________________ guilty of Sexual Assault of the Second Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault of the Second Degree, you shall find the Defendant ______________________________ not guilty.

person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.
    Lack of Consent: results from: (1) Forcible Compulsion, or (2) incapacity to consent, and a person is deemed incapable to consent when such person is: [1] less than sixteen years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault In The Third Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________,
6.      without the consent of ______________________________,
7.      she being a mentally defective person,
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault In The Third Degree, you may find ______________________________ guilty of Sexual Assault In The Third Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault In The Third Degree, you shall find the Defendant ______________________________ not guilty.

by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.
    Lack of Consent: results from: (1) Forcible Compulsion, or (2) incapacity to consent, and a person is deemed incapable to consent when such person is: [1] less than sixteen years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault of the Third Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________,
6.      without the consent of ______________________________,
7.      she being mentally incapacitated.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault of the Third Degree, you may find ______________________________ guilty of Sexual Assault of the Third Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault of the Third Degree, you shall find the Defendant ______________________________ not guilty.

by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.
    Lack of Consent: results from: (1) Forcible Compulsion, or (2) incapacity to consent, and a person is deemed incapable to consent when such person is: [1] less than sixteen years old or [2] mentally defective, or [3] mentally incapacitated, or [4] physically helpless.
    "Forcible Compulsion" means: (a) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances, or (b) threat or intimidation, express or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped, or (c) fear by a child under sixteen years of age caused by intimidation, expressed or implied by another person four years older than the victim. For purposes of this definition, "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Sexual Assault of the Third Degree, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did engage in (sexual intercourse) (sexual intrusion),
5.      with another person, ______________________________,
6.      she being less than sixteen years old and incapable of consent,
7.      and he being at least four years older than ______________________________.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Sexual Assault of the Third Degree, you may find ______________________________ guilty of Sexual Assault of the Third Degree as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Sexual Assault of the Third Degree, you shall find the Defendant ______________________________ not guilty.