OUJI-CR 4-129

[LEWD ACTS (MOLESTATION) WITH]/
[INDECENT PROPOSALS TO]
A CHILD UNDER SIXTEEN -- ELEMENTS

No person may be convicted of (lewd acts with)/(indecent proposals to) a child under sixteen unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the defendant knowingly and intentionally;

Second, made a/an oral/written/(electronically/computer generated) lewd or indecent proposal;

Third, to a child/(person the defendant believed to be a child) under sixteen years of age;

Fourth, for the child to have unlawful sexual relations/intercourse with any person; and

Fifth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child's age)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, (looked upon)/touched/mauled/felt;

Third, the body or private parts;

Fourth, of a child under sixteen years of age;

Fifth, in any lewd or lascivious manner; and

Sixth, the defendant (was at least three years older than the child)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, asked/invited/enticed/persuaded;

Third, a child/(person the defendant believed to be a child) under sixteen years of age;

Fourth, to go alone with any person;

Fifth, to a secluded/remote/secret place;

Sixth, with the unlawful and willful intent and purpose;

Seventh, to commit [Identify Crime Against Public Decency and Morality]; and

Eighth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child's age)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, in a lewd and lascivious manner;

Third, for the purpose of sexual gratification;

Fourth, [urinated/defecated upon]/[ejaculated upon/(in the presence of)];

Fifth, a child under sixteen years of age; and

Sixth, the defendant (was at least three years older than the child)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, in a lewd and lascivious manner;

Third, for the purpose of sexual gratification;

Fourth, forced/required a child under sixteen years of age;

Fifth, to urinate/defecate [upon the body/(private parts) of another]; and

Sixth, the defendant (was at least three years older than the child)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, in a lewd and lascivious manner;

Third, for the purpose of sexual gratification;

Fourth, caused/exposed/forced/required a child under sixteen years of age;

Fifth, to look upon [the body/(private parts) of another person]/[sexual acts performed in the presence of the child]; and

Sixth, the defendant (was at least three years older than the child)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, in a lewd and lascivious manner;

Third, for the purpose of sexual gratification;

Fourth, forced/required a child under sixteen years of age;

Fifth, to touch/feel the body/(private parts) of (the child)/(another person); and

Sixth, the defendant (was at least three years older than the child)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, in a lewd and lascivious manner;

Third, for the purpose of sexual gratification;

Fourth, forced/required a child/(person the defendant believed to be a child) under sixteen years of age;

Fifth, to view (obscene materials)/(child pornography)/(materials deemed harmful to minors); and

Sixth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child's age)/(used force/fear).

The words "lewd" and "lascivious" have the same meaning and signify conduct which is lustful and which evinces an eagerness for sexual indulgence.

______________________________

Statutory Authority: 21 O.S. Supp.2023, § 1123(A).

Notes on Use

The trial court should select the appropriate alternative elements according to the crime charged and the evidence presented. It may be appropriate for the trial court to set out the elements for a crime against public decency and morality in the third alternative, supra. Examples of crimes against public decency and morality include rape, sexual assault, sodomy, and lewd molestation.

If the prosecution is seeking punishment for a victim under twelve years of age and there is no factual dispute about the victim's age, the trial court should substitute "twelve" for "sixteen" in the first sentence and wherever else "sixteen" appears in the rest of the instruction. If there is a jury issue about whether the victim was under the age of twelve at the time of the crime, the court should require the jury to make a separate finding analogous to OUJI-CR 10-22 in the verdict form with respect to the age of the victim. In Chadwell v. State, 2019 OK CR 14, ¶ 3, 446 P.3d 1244, 1248 (J. Kuehn, concurring), Judge Kuehn suggested an instruction for OUJI-CR 10-13 on the issue of the age of the vicim.

Committee Comments

The Oklahoma Court of Criminal Appeals ruled that section 1123(A)(1) of title 21 was not unconstitutionally vague in Reed v. State, 1986 OK CR 64, ¶¶ 3-6, 718 P.2d 373, 374-75.

The definition of "lewd" and "lascivious" is taken from Reeves v. State, 1991 OK CR 101, ¶¶ 44-47, 818 P.2d 495, 504.

Corroboration of the victim's testimony is not required "unless such testimony appears incredible or so unsubstantial as to make it unworthy of belief." Jones v. State, 1988 OK CR 281, ¶ 10, 765 P.2d 800, 802.

In Barnard v. State, 2012 OK CR 15, ¶ 12, 290 P.3d 759, 763-64, the Oklahoma Court of Criminal Appeals decided that the crime of making an indecent proposal to a child applied to indecent proposals made to an undercover officer posing as a child. In cases where the defendant is accused of making indecent proposals to an undercover officer, the Fifth Element of the First Alternative (and the corresponding elements of other Alternatives) should read: "Fifth, the defendant was at least three years older than the purported child's age."

(2024 Supp.)