OUJI-CR 4-39

SEXUAL ABUSE/ OF CHILDREN - ELEMENTS

No person may be convicted of the sexual abuse/ of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a person responsible for a child's health, safety or welfare;

Second, willfully/maliciously;

Third, engaged in (sexual intercourse)/(penetration of the vagina or anus, however slight, by an inanimate object or any part of the human body not amounting to sexual intercourse)/sodomy/incest/(a lewd act/proposal)/(specify other sexual abuse)];

Fourth, of/with/to a child under the age of eighteen/.

Statutory Authority: 21 O.S. 2021, § 843.5(E), (F), (O)(3),

Notes on Use

The various types of child sexual abuse and child sexual exploitation are listed in 21 O.S. 2021, § 843.5(O)(3), (4). In prosecutions for child sexual abuse, the trial court should instruct the jury using the definitions found in 21 O.S. 2021, § 843.5(O)(3), rather than from other statutes, which may be different. For example, the definition of "lewd act or proposal" in 21 O.S. 2021, § 843.5(O)(10) differs from the elements of lewd molestation in 21 O.S. 2021, § 1123(A)(5) because the § 843.5(O)(10) definition does not contain the requirement that the victim be under sixteen (16) years of age.

If evidence is presented that the victim was under the age of twelve at the time of the alleged crime, OUJI-CR 10-13D and verdict form 10-14A should be used. See Chadwell v. State, 2019 OK CR 14, 446 P.3d 1244, and Williams v. State, 2021 OK CR 19, 496 P.3d 621.

OUJI-CR 4-35, supra, should be used if the defendant is charged with child abuse.

Committee Comments

The decision of the Oklahoma Court of Criminal Appeals in A.O. v. State, 2019 OK CR 18, 447 P.3d 1179, has been superseded in part by the 2021 amendments to 21 O.S. 2021 § 843.5 involving child sexual abuse. In A.O. v. State, the Oklahoma Court of Criminal Appeals decided that the State was required to prove the elements of the underlying crime involving child sexual abuse beyond a reasonable doubt. Id. at ¶ 9, 447 P.3d at 1182. The defendant in A.O. was originally charged with sexual battery under 21 O.S. Supp. 2019, § 1123(B), but the State was unable to prove the necessary elements under § 1123, because of the ages of the defendant and the victim.

The Oklahoma Court of Criminal Appeals directed the use of a differently worded instruction for cases under 10 O.S. Supp. 1995, § 7115 in Huskey v. State, 1999 OK CR 3, ¶ 12, 989 P.2d 1, 7. A.O. v. State overruled Huskey, 2019 OK CR 18, ¶ 10, 447 P.3d 1179, 1182.

Enhanced punishment for sexual abuse and sexual exploitation of children under the age of twelve was added in 2007.

(2024 Supp.)