T.P.I. -- CRIM. 10.04
SEXUAL BATTERY
Any person who commits the offense of sexual battery 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) [the defendant had unlawful sexual contact with the alleged victim in
which the defendant intentionally touched the alleged victim’s intimate
parts, or the clothing covering the immediate area of the alleged
victim’s intimate parts2] [that the alleged victim had unlawful sexual
contact with the defendant in which the victim intentionally touched
the defendant’s, or any other person’s intimate parts, or the clothing
covering the immediate area of the defendant’s, or any other person’s
intimate parts3];
and
(2)(a) that force or coercion was used to accomplish the act;
or
(b) that the sexual contact was accomplished without the consent
of the alleged victim and the defendant knew, or had reason to
know, at the time of the contact 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 contact by fraud;
and
(3) that the defendant acted either intentionally, knowingly or recklessly.4 [See footnotes 2 and 4 below].
"Sexual contact" includes the intentional touching of the alleged victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the alleged victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.5
"Intimate parts" includes the primary genital area, groin, inner thigh, buttock or breast of a human being.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
["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.]9
["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.]10
["Physically helpless" means a person is unconscious, asleep or for any other reason is physically or verbally unable to communicate unwillingness to do an act.]11
["Fraud" is defined as the term is used in normal conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.]12
"Victim" means the person alleged to have been subjected to the criminal sexual conduct.13
"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.14
"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.15
"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.16
FOOTNOTES
1. Tenn. Code Ann. § 39-13-505(a).
2. State v. Howard, 926 S.W.2d 579, 587 (Tenn. Crim. App. 1996),
holds that the mental state of this element must be set out clearly in the
instructions, because the elements of sexual battery contain different
culpable mental states. See also State v. Parker, 887 S.W.2d 825, 827
(Tenn. Crim. App. 1994) and footnote 4.
3. Id.
4. Although the statutes expressly provide that the sexual contact must be
intentional, they neither set out nor plainly dispense with the culpable mental
state required for the other elements of this offense, so that mere reckless
conduct is sufficient. State v. Parker, 887 S.W.2d 825, 827 (Tenn. Crim.
App. 1994)
5. Tenn. Code Ann. § 39-13-501(6).
6. Tenn. Code Ann. § 39-13-501(2).
7. Tenn. Code Ann. § 39-11-106(a)(12).
8. Tenn. Code Ann. § 39-13-501(1).
9. Tenn. Code Ann. § 39-13-501(3).
10. Tenn. Code Ann. § 39-13-501(4).
11. Tenn. Code Ann. § 39-13-501(5).
12. Tenn. Code Ann. § 39-11-106(a)(13).
13. Tenn. Code Ann. § 39-13-501(8).
14. Tenn. Code Ann. § 39-11-106(a)(18).
15. Tenn. Code Ann. § 39-11-106(a)(20).
16. Tenn. Code Ann. § 39-11-106(a)(31).
COMMENTS
1. Sexual battery is a Class E felony. Tenn. Code Ann. § 39-13-505(b).
2. A violation of Tenn. Code Ann. § 39-15-401, child abuse and neglect, may be a lesser included offense of sexual battery. Tenn. Code Ann. § 39-15-401(d).