T.P.I. -- CRIM. 10.01
AGGRAVATED RAPE
Any person who commits the offense of aggravated rape 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 had unlawful sexual penetration of the alleged
victim or the alleged victim had unlawful sexual penetration of the
defendant;
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 2 by one (1) or more
persons;
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;
and
(3) that the defendant acted either intentionally, knowingly or recklessly.3
"Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the alleged victim's, the defendant's, or any other person's body, but emission of semen is not required.4
["Cunnilingus" means a sex act accomplished by placing the mouth or tongue on or in the vagina of another.] 5
["Fellatio" means a sex act accomplished with the male sex organ and the mouth of another.] 6
["Force" means compulsion by the use of physical power or violence.]7
["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.]8
"Victim" means the person alleged to have been subjected to criminal sexual conduct. 9
["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.]10
[An "aider and abetter" is one who advises, counsels, procures or encourages another to commit a crime.] 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.]13
["Physically helpless" means that a person is unconscious, asleep or for any other reason 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. § 39-13-502(a).
2. 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 4
below.
3. Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing
Commission Comment.
4. Tenn. Code Ann. § 39-13-501(7).
5. This definition is derived from former T.P.I. CRIM -- 9.04, Crimes Against
Nature.
6. Id.
7. Tenn. Code Ann. § 39-11-106(a)(12).
8. Tenn. Code Ann. § 39-13-501(1).
9. Tenn. Code Ann. § 39-13-501(8).
10. Tenn. Code Ann. § 39-11-106(a)(2).
11. Flippen v. State, 365 S.W.2d 895 (Tenn. 1963). The trial judge may want to
charge former T.P.I. -- CRIM. 3.02 (Aiding and Abetting) in its entirety. See
Comment 4 below.
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 rape is a Class A felony. Tenn. Code Ann. § 39-13-502(b).
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. A violation of Tenn. Code Ann. § 39-15-401, child abuse and neglect, may be a lesser included offense of aggravated rape. Tenn. Code Ann. § 39-15-401(d).
4. 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).