T.P.I. -- CRIM. 10.06 (a)

AGGRAVATED SPOUSAL RAPE

            Any person who commits the offense of aggravated spousal 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

                         spousal victim or the alleged spousal victim had sexual penetration of the defendant;

and

(2)        that the defendant knowingly engaged in conduct that was         especially cruel, vile, and inhumane to the victim during the commission of the offense;

and

            (3)(a)   that the defendant caused serious bodily injury to the victim;

or

            (3)(b)   that the defendant was armed with a weapon or any article used or fashioned in a manner to lead the alleged victim to reasonably believe it to be a weapon;

and

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

            "Spousal victim" means the legal spouse alleged to have been subjected to criminal sexual conduct.³

            "Legal spouse" means a person who, at the time of the alleged offense, was lawfully married to the defendant.

            "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

            ["Serious bodily injury" means bodily injury which involves a substantial risk of death; protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement; or protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.]⁷

            ["Weapon" means anything manifestly designed, made, or adapted for the purpose of inflicting bodily injury or in the manner of its use or intended use is capable of inflicting bodily injury.]⁸

            "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. ⁹

            "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.¹⁰

            "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.¹¹

FOOTNOTES

1.         Tenn. Code Ann. § 39-13-507(c).

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

3.                  Tenn. Code Ann. § § 39-13-501(8) and 39-13-507(a).

4.                  Tenn. Code Ann. § 39-13-501(7).

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

6.                  Id.

7.         Tenn. Code Ann. § 39-11-106(a)(34).  Some trial judges are of the opinion that the definition of "bodily injury," Tenn. Code Ann. § 39-11-106(a)(2), should be given in connection with the definition of "serious bodily injury."

8.                  This is a modified definition of "deadly weapon" found in Tenn. Code Ann. § 39-11-106(a)(5).

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

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

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

COMMENTS

            1.  Aggravated spousal rape is a Class B felony.

            2.  Spousal rape is a Class C felony.  However, spousal rape where the spouses are living apart and one of them has filed for separate maintenance or divorce is punished pursuant to Tenn. Code Ann. § 39-13-502, aggravated rape, or § 39-13-503, rape, as applicable.  Tenn. Code Ann. § 39-13-507(b)(2).

            3.  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.

            4.  Spousal sexual battery is amended to Tenn. Code Ann. § 39-13-507(d).