OUJI-CR 4-39

SEXUAL ABUSE/EXPLOITATION OF CHILDREN - ELEMENTS

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

First, a person willfully/maliciously engaged in;

Second, rape/incest/(making lewd/indecent acts/proposals)/(specify other sexual abuse);

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

OR

First, a person willfully/maliciously;

Second, Encouraged/allowed/permitted a child under the age of eighteen/twelve to engage in prostitution/(specify other sexual exploitation).

OR

First, a person willfully/maliciously;

Second, encouraged/allowed/permitted/(engaged in) the lewd/obscene/pornographic photographing/filming/depicting of a child under the age of eighteen/twelve by another person.

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Statutory Authority: 21 O.S. Supp. 2015, § 843.5(E), (F), (H), and (I).

Notes on Use

The trial court should give a separate instruction on the elements of the particular sexual abuse or sexual exploitation that has been alleged.

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

Committee Comments

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. The above instruction places the holding in Huskey in the format of the other instructions on child abuse and neglect. In ¶ ¶ 11-13 of the Huskey opinion, the Court applied the definitions of sexual abuse and sexual exploitation set out in 10 O.S. Supp. 1998, § 7102(B)(6) and (7).  When Huskey was decided, these definitions included the restriction that the sexual abuse or sexual exploitation must be "by a person responsible for a child's health or safety.", but the present statute dealing with child sexual abuse or child sexual exploitation, 21 O.S. Supp. 2015, § 843.5(E)-(J), does not include a restriction that the sexual abuse or sexual exploitation must be by a person responsible for a child's health or safety.

In Fairchild v. State, 1999 OK CR 49, ¶ 51, 998 P.2d 611, 622-23, the Oklahoma Court of Criminal Appeals decided that the mens rea for felony murder of a child under 21 O.S. Supp. 1999, § 701.7(C) was a general intent to commit the act which causes the injury, rather than a specific intent, and that the general intent was included within the terms "willfully" or "maliciously."

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

(2016 Supp.)