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

Second, willfully/maliciously engaged in;

Third, (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/indecent act/proposal/(specify other sexual abuse);

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

OR

First, a person willfully/maliciously;

Second, engaged in (specify the particular allegation of sexual exploitation enumerated in 21 O.S. § 843.5(O)(4)); )

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

______________________________

Statutory Authority: 21 O.S. 2021, § 843.5(E), (F), (H), (I), (O)(3), (O)4).

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. The various types of child sexual abuse and child sexual exploitation are listed in 21 O.S. 2021, § 843.5(O)(3), (4).

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

Committee Comments

In A.O. v. State, 2019 OK CR 18, 447 P.3d 1179, 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 defendant was then adjudicated as a delinquent child for child sexual abuse under 21 O.S. Supp. 2019, § 843(E), but the Court of Criminal Appeals reversed, because the State did not prove the elements of the underlying crime.

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.

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.

(2022 Supp.)