T.P.I. -- CRIM. 10.02

RAPE

            Any person who commits the offense of 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;

or

                 (b) that the sexual penetration was accomplished without the consent

                        of the alleged victim and the defendant knew, or had reason to

                        know, at the time of the penetration that the alleged victim did not

                        consent;

or

                 (c) 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 defendant accomplished sexual penetration by fraud;

and

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

            "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.³

            ["Force" means compulsion by the use of physical power or violence.]⁴

            ["Fellatio" means a sex act accomplished with the male sex organ and the mouth of another.] ⁵

            ["Cunnilingus" means a sex act accomplished by placing the mouth or tongue on or in the vagina of another.] ⁶

            ["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.]⁷

            ["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.]⁸

            ["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.]⁹

            ["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.]¹⁰

            ["Fraud" is defined as the term is used in normal conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.]¹¹

            "Victim" means the person alleged to have been subjected to criminal sexual conduct.¹²

            "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.¹³

            "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.¹⁴

            "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.¹⁵

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-503(a).

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

       Commission Comment.

  3.  Tenn. Code Ann. § 39-13-501(7).

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

  5.  This definition is derived from former T.P.I. -- CRIM. 9.04, Crimes Against

       Nature.

  6.  Id.

  7.  Tenn. Code Ann. § 39-13-501(1).

  8.  Tenn. Code Ann. § 39-13-501(3).

  9.  Tenn. Code Ann. § 39-13-501(4).

10.  Tenn. Code Ann. § 39-13-501(5).

11.  Tenn. Code Ann. § 39-11-106(a)(13).

12.  Tenn. Code Ann. § 39-13-501(8).

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

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

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

COMMENTS

            1.  Rape is a Class B felony.  Tenn. Code Ann. § 39-13-503(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 rape.  Tenn. Code Ann. § 39-15-401(d).

            4.  When imposing sentence under the provisions of Tennessee Code

Annotated, Title 40, Chapter 35, for a conviction under this section, the court

shall consider as an enhancement factor that the defendant caused the victim to

be mentally incapacitated or physically helpless by use of a controlled substance. (Public Chapter 97-406 § 1, effective date, July 1, 1997).