Incest

Proposed Instructions for Incest

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).

INCEST
(female with male)
______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Incest. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Incest; and (2) not guilty.
    Incest is committed when any female person shall have sexual intercourse or sexual intrusion with her father, brother, son, grandson, grandfather, nephew or uncle.
    "Sexual Intercourse" means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person.
    "Sexual Intrusion" means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated, or for gratifying the sexual desire of either party.
For purposes of this instruction:
1.      "Aunt" means the sister of a person's mother or father;
2.      "Brother" means the son of a person's mother or father;
3.      "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
4.      "Father" means a person's natural father, adoptive father or the husband of a person's mother;
5.      "Granddaughter" means the daughter of a person's son or daughter;
6.      "Grandfather" means the father of a person's father or mother;
7.      "Grandmother" means the mother of a person's father or mother;
8.      "Grandson" means the son of a person's son or daughter;
9.      "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
10.      "Niece" means the daughter of a person's brother or sister;
11.      "Nephew" means the son of a person's brother or sister;
12.      "Sister" means the daughter of a person's mother or father;
13.      "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and
14.      "Uncle" means the brother of a person's father or mother.
    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 Incest, 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__, (through the _____ day of _______________, 199__),

4.      did have (sexual intercourse) (sexual intrusion) with ______________________________,
5.      that the Defendant ______________________________was the
    _relationship ________________________ of the _victim____________________________.
    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 Incest , you may find ______________________________ guilty 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 Incest, you shall find the Defendant ______________________________ not guilty.

COMMENT
INCEST
(female with male)
1. W.Va. Code, §61-8-12, "Incest".
2. State v. George W.H., 439 S.E. 2d 423 (W.Va. 1993); State v. Dolin, 176 W.Va. 688, 347 S.E. 2d 208 (1986); State v. Peyatt, 178 W.Va. 317, 315 S.E. 2d 574 (1983); State v. Eden, 163 W.Va. 370, 256 S.E. 2d 868 (1979); State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E. 2d 330 (1975); State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E. 2d 418 (1964); U.S. ex rel. Preece v. Coiner, 150 F. Supp. 511 (N.D.W.Va. 1957).

INCEST
(male with male)
______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Incest. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Incest; and (2) not guilty.
    Incest is committed when any male person shall have sexual intercourse or sexual intrusion with his father, brother, son, grandson, grandfather, nephew or uncle.
    "Sexual Intercourse" means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person.
    "Sexual Intrusion" means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated, or for gratifying the sexual desire of either party.
For purposes of this instruction:
1.     "Aunt" means the sister of a person's mother or father;
2.     "Brother" means the son of a person's mother or father;
3.     "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
4.     "Father" means a person's natural father, adoptive father or the husband of a person's mother;
5.     "Granddaughter" means the daughter of a person's son or daughter;
6.     "Grandfather" means the father of a person's father or mother;
7.     "Grandmother" means the mother of a person's father or mother;
8.     "Grandson" means the son of a person's son or daughter;
9.     "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
10.     "Niece" means the daughter of a person's brother or sister;
11.     "Nephew" means the son of a person's brother or sister;
12.     "Sister" means the daughter of a person's mother or father;
13.     "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and
14.     "Uncle" means the brother of a person's father or mother.
    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 Incest, 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__, (through the _____ day of _______________, 199__), 4.     did have (sexual intercourse) (sexual intrusion) with ______________________________,
5.     that the Defendant ______________________________was the
     _relationship _______________________ of the _victim _____________________________.
    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 Incest , you may find ______________________________ guilty 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 Incest, you shall find the Defendant ______________________________ not guilty.

COMMENT
INCEST
(male with male)

1. W.Va. Code, §61-8-12, "Incest".
2. State v. George W.H., 439 S.E. 2d 423 (W.Va. 1993); State v. Dolin, 176 W.Va. 688, 347 S.E. 2d 208 (1986); State v. Peyatt, 173 W.Va. 317, 315 S.E. 2d 574 (1983); State v. Eden, 163 W.Va. 370, 256 S.E. 2d 868 (1979); State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E. 2d 330 (1975); State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E. 2d 418 (1964); U.S. ex rel. Preece v. Coiner, 150 F. Supp. 511 (N.D.W.Va. 1957).

INCEST
(female with female)

______________ INSTRUCTION NO. ____
    The offense charged in Count _____ of the Indictment in this case is Incest. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Incest; and (2) not guilty.
    Incest is committed when any female person shall have sexual intercourse or sexual intrusion with her mother, sister, daughter, granddaughter, niece or aunt.
    "Sexual Intercourse" means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person.
    "Sexual Intrusion" means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated, or for gratifying the sexual desire of either party.
For purposes of this instruction:
1.     "Aunt" means the sister of a person's mother or father;
2.     "Brother" means the son of a person's mother or father;
3.     "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
4.     "Father" means a person's natural father, adoptive father or the husband of a person's mother;
5.     "Granddaughter" means the daughter of a person's son or daughter;
6.     "Grandfather" means the father of a person's father or mother;
7.     "Grandmother" means the mother of a person's father or mother;
8.     "Grandson" means the son of a person's son or daughter;
9.     "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
10.     "Niece" means the daughter of a person's brother or sister;
11.     "Nephew" means the son of a person's brother or sister;
12.     "Sister" means the daughter of a person's mother or father;
13.     "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and
14.     "Uncle" means the brother of a person's father or mother.
    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 Incest, 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__, (through the _____ day of _______________, 199__), 4.     did have (sexual intercourse) (sexual intrusion) with ______________________________,
5.     that the Defendant ______________________________was the
    _relationship _______________________ of the _victim ______________________________.
    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 Incest , you may find ______________________________ guilty 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 Incest, you shall find the Defendant ______________________________ not guilty.

COMMENT
INCEST
(female with female)
1. W.Va. Code, §61-8-12, "Incest".
2. State v. George W.H., 439 S.E. 2d 423 (W.Va. 1993); State v. Dolin, 176 W.Va. 688, 347 S.E. 2d 208 (1986); State v. Peyatt, 173 W.Va. 317, 315 S.E. 2d 574 (1983); State v. Eden, 163 W.Va. 370, 256 S.E. 2d 868 (1979); State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E. 2d 330 (1975); State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E. 2d 418 (1964); U.S. ex rel. Preece v. Coiner, 150 F. Supp. 511 (N.D.W.Va. 1957).