WPIC 19.04.05 Custodial Sexual Misconduct—Forcible Compulsion—Defense
11 WAPRAC WPIC 19.04.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.04.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.04.05 Custodial Sexual Misconduct—Forcible Compulsion—Defense
It is a defense to a charge of custodial sexual misconduct in the [first] [second] degree that the act of sexual [intercourse] [contact] resulted from forcible compulsion by the other person.
Forcible compulsion means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use this instruction with one of the to-convict instructions for custodial sexual misconduct (WPIC 49B.02 (Custodial Sexual Misconduct—First Degree—Correctional Worker—Elements), WPIC 49B.03 (Custodial Sexual Misconduct—First Degree—Law Enforcement Officer—Elements), WPIC 49B.05 (Custodial Sexual Misconduct—Second Degree—Correctional Worker—Elements), or WPIC 49B.06 (Custodial Sexual Misconduct—Second Degree—Law Enforcement Officer—Elements)) if the statutory defense is in issue.
Use the bracketed material as applicable.
COMMENT
RCW 9A.44.180; RCW 9A.44.010(6).
All sexual contact or sexual intercourse between a resident of a correctional facility who is under correctional supervision and an employee of the correctional facility or agency is criminal. RCW 9A.44.160; RCW 9A.44.170. An affirmative defense, however, exists for an employee of a correctional facility who is forced to engage in sexual contact or sexual intercourse with a resident of the correctional facility. RCW 9A.44.180. The defendant must establish by a preponderance of the evidence that the act of sexual intercourse or sexual contact resulted from forcible compulsion by the other person. RCW 9A.44.180.
A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851-52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).
Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).
[Current as of February 2019.]
Westlaw. © 2024 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
| End of Document |