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8.173 Attempted Sexual Abuse—Incapacity of Victim

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8.173 ATTEMPTED SEXUAL ABUSE—INCAPACITY OF VICTIM (18 U.S.C. § 2242(2))

The defendant is charged in [Count _______ of] the indictment with attempted sexual abuse in violation of Section 2242(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to engage in a sexual act with a person who was [incapable of appraising the nature of the conduct] [physically incapable of declining participation in or communicating unwillingness to engage in that sexual act];

Second, the defendant did something that was a substantial step toward committing the crime of sexual abuse; and

Third, the offense was committed at [specify place of federal jurisdiction].

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.

In this case, "sexual act" means [specify statutory definition].

Comment

See Comment to Instruction 8.164 (Aggravated Sexual Abuse).

"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir.), cert. denied, 540 U.S. 977 (2003).

"To constitute a substantial step toward the commission of a crime, the defendant’s conduct must (1) advance the criminal purpose charged, and (2) provide some verification of the existence of that purpose." United States v. Goetzke, 494 F.3d 1231, 1235 (9th Cir.2007). Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).