T.P.I. -- CRIM. 10.07

SPOUSAL SEXUAL BATTERY

            Any person who commits the offense of spousal 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

spousal victim in which the defendant intentionally touched the alleged spousal victim’s intimate parts, or the clothing covering the immediate area of the alleged victim’s intimate parts ²] [that the alleged spousal victim had unlawful sexual contact with the defendant in which the spousal 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 parts ³] ;

 and

            (2)(a)   that the defendant was armed with a weapon or any article used or

fashioned in a manner to lead the alleged spousal victim to reasonably believe it to be a weapon;

or

                (b)  that the defendant caused serious bodily injury to the alleged

                      victim;

or

                (c)    that the spouses were living apart and one of them had filed for

                      separate maintenance or divorce;

and

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

                         [See footnotes 2 and 4 below].

            "Spousal victim" means the legal spouse alleged to have been subjected to criminal sexual conduct. ⁵

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

            "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.⁶

            "Intimate parts" includes the primary genital area, groin, inner thigh, buttock or breast of a human being. ⁷

            ["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 the function of a bodily member, organ or mental faculty.]⁸

            ["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.]⁹

            "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. ¹⁰

            "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. ¹¹

            "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.¹²

FOOTNOTES

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

  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(8) and 39-13-507(a).

  6.  Tenn. Code Ann. § 39-13-501(6).

  7.  Tenn. Code Ann. § 39-13-501(2).

  8.  Tenn. Code Ann. § 39-11-106(a)(33).  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".

  9.  This is a modified definition of "deadly weapon" found in Tenn. Code Ann.

       § 39-11-106(a)(5).

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

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

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

COMMENTS

            1.  Spousal sexual battery is a Class D felony.  However, spousal sexual battery where the spouses are living apart and one of them has filed for separate maintenance or divorce is punished pursuant to Tenn. Code Ann. § 39-13-504, aggravated sexual battery,  or § 39-13-505, sexual battery, as applicable. Tenn. Code Ann. § 39-13-507(c)(2).