T.P.I. – CRIM. 10.04(a)
SEXUAL BATTERY BY AN AUTHORITY FIGURE
Any person who commits the offense of sexual battery by an authority figure 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
[Part A:
(1) [that 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) that the victim was thirteen (13) years of age or older but less than eighteen (18) years of age;
and
(3) that the defendant had, at the time of the offense, [supervisory] [disciplinary] power over the victim by virtue of the defendant’s [legal] [professional] [occupational] status;
and
(4) that the defendant used such power to accomplish the sexual contact;
and
(5) that the defendant acted either intentionally, knowingly or recklessly.0]
[Part B: [ Only for offenses committed on or after 4/29/98]
(1) [that 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 parts5] [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 parts6];
and
(2) that the victim was thirteen (13) years of age or older but less than eighteen (18) years of age;
and
(3) that the defendant had, at the time of the offense, [parental] [custodial] authority over the victim;
and
(4) that the defendant used such authority to accomplish the sexual contact;
and
(5) that the defendant acted either intentionally, knowingly or recklessly.7]
“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.8
“Intimate parts” includes the primary genital area, groin, inner thigh, buttock or breast of a human being.9
“Victim” means the person alleged to have been subjected to the criminal sexual conduct.10
“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.11
“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.12
“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.13
COMMENTS
1. Sexual battery by an authority figure is a Class C felony. Tenn. Code Ann. § 39-13-527.
2. Although the definitions section, Tenn Code Ann. § 39-13-501, enacted in 1989, limited the definitions contained therein to offenses set out in §§ 39-13-501- - § 39-13-511, the Committee feels that when the offense of sexual battery by an authority figure was created by the legislature in 1997 and 1998 it was their intent that those definitions apply to this offense as well.
3. 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).
FOOTNOTES
1. Tenn. Code Ann. § 39-13-527.
2. State v. Howard, 926 S.W.2d 579 (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.
0.4. Although the stautes expressly provide that the sexual contact must be intentional, they neither set out plainly dispense with 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. See footnote 2.
6. See footnote 2.
7. See footnote 4.
8. Tenn. Code Ann. § 39-13-501(6). See Comment 2.
9. Tenn. Code Ann. § 39-13-501(2). See Comment 2.
10. Tenn. Code Ann. § 39-13-501(8). See Comment 2.
11. Tenn. Code Ann. § 39-11-106(a)(18).
12. Tenn. Code Ann. § 39-11-106(a)(20).
13. Tenn. Code Ann. § 39-11-106(a)(31).