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Case 1:20-cr-00330-PAE Document 410-1 Count Two alleges that the defendantMs. Maxwell enticed [Jane Doe-1_pseudonym] to travel across state lines with the intent that she would engage in sexual activity with Jeffrey Epstein in violation of New York Penal Law. Section 130.55fer+hteh--perser-eoutd-be-ehareed- . Linstruct you as a matter of law that Sexual Abuse in the Third Degree, the offense set forth in Count Two of the Indictment, was a violation of New York State Penal law from at least in or about 1994 up to an including in or about 1997, at the time the acts are alleged to have been committed. A person violates New York State Penal Law § 130.55, Sexual Abuse in the Third Degree, when he or she subjects another person to sexual contact without the latter’s consent. Under New York law, “sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either party. It includes the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. Also under New York law, lack of consent can result from incapacity to consent. A person less than seventeen years old is deemed incapable of consenting to sexual contact under New York Law. Phes-theles-deex eros eensente nifin faetthat person did consent] owever, in order to find thatthe wttetded pet reretioteenrenstinbsotch bees cithe stennt eels. Maxwell guilty of Count Two of the Indictment, yeutmust-fnd+thatthe government must prove beyond a reasonable doubt that the- defendantMs. Maxwell knew that +he++etisa[Jane Doe-1 pseudonym] was less \ than seventeen years old at the time the sexual contact alleged in Count Two took place in New York. Adapted from Sand et al., Modern Federal Jury Instructions, Instrs. 64-9, 64-18; New York Penal Law §§ 15.20(3), 130.00, 23 Filed 11/04/21 Page 23 of 93 | Commented [CE34]: The defense requests that this language be deleted If the Court determines that this language is appropriate, the defense requests that the following language immediately follow this language to ensure the instruction is balanced: “By contrast, a person seventeen years old or older is capable of consenting to sexual contact under New York law and any such consensual sexual contact is legal ” Commented [RA(35R34]: GOVERNMENT RESPONSE: The proposed language is legally accurate and clarifies for the jury what it means for someone to be “deemed incapable of consenting to sexual contact ” The defense’s proposed additional mstruction adds nothing and may create confusion Jurors will understand what it means for an individual to be above the age of consent By giving them an instruction, it suggests that the Court is because the jury has just been told that people over 17— unlike people under 17—are at least capable of consent _ Formatted: Underline DOJ-OGR-00006089