WPI 365.16 Sexually Violent Predators—Sexual Violence—Definition

Based on the evidence in the case, fill in the blank with the following crimes of sexual violence: (1) those with which the respondent has allegedly been charged or convicted; (2) those that the respondent is likely to commit in the future; (3) those that constituted “recent overt acts” (when proof of such an act is necessary). For predicted future offenses and “recent overt acts,” the court should also give instructions defining the elements of those crimes, as well as any instructions necessary to define terms used in those instructions. See the Comment below.

Use the bracketed phrase if the court is also giving WPI 365.15 (Sexually Violent Predators—Recent Overt Act—Definition).

Use of instruction. This definition is relevant to three aspects of a sexually violent predator proceeding. First, the State must prove that the respondent is likely to engage in predatory acts of sexual violence in the future. Second, the State must prove that he or she has been convicted or charged with a crime of sexual violence in the past. If the State is relying on a past crime of which the respondent was not convicted, the court should follow the procedure set out in RCW 71.09.060(2). Third, the State is sometimes required to prove commission of “a recent overt act.” Such an act requires either harm of a sexually violent nature or a reasonable apprehension of such harm. RCW 71.09.020. Although slightly different terms are used in different subsections of the SVPA, the terms “crime of sexual violence” and “sexually violent offense” are synonymous. In re Detention of Taylor-Rose, 199 Wn.App. 866, 874–76, 401 P.3d 357 (2017); In re Detention of Coppin, 157 Wn.App. 537, 551–54, 238 P.3d 1192 (2010).

Crimes of sexual violence. Crimes of sexual violence include crimes defined in the following instructions: WPIC 40.01 (Rape—First Degree—Definition); WPIC 44.10 (Rape of a Child—First Degree—Definition); WPIC 44.12 (Rape of a Child—Second Degree—Definition); WPIC 44.20 (Child Molestation—First Degree—Definition); and WPIC 44.22 (Child Molestation—Second Degree—Definition). The definition also includes convictions under the following repealed statutes: first degree statutory rape (former RCW 9A.44.070); second degree statutory rape (former RCW 9A.44.080); and indecent liberties against a child under age 14 (former RCW 9A.44.100(1)(b)). The definition also includes any offense under former law, or any federal or out-of-state offense, that is comparable to one of these crimes. The court will need to determine whether any such prior offenses are sufficiently comparable to warrant inclusion in the definition of “sexual violence.”

A few crimes are classified as “sexually violent” offenses only if specific alternative means or additional elements are proved.

Second degree rape and indecent liberties are “sexually violent” only if committed by forcible compulsion. To define these crimes, the court can use WPIC 41.01 (Rape—Second Degree—Definition) and WPIC 49.01 (Indecent Liberties—Definition). The court should omit the bracketed language dealing with all alternatives other than forcible compulsion.

Incest is classified as a “sexually violent” offense only if the victim was under the age of 14. To define this crime, the court can use WPIC 46.03 (Incest—First Degree—Definition) and WPIC 46.05 (Incest—Second Degree—Definition), adding a requirement that the victim be under the age of 14. In re Detention of Boynton, 152 Wn.App. 442, 453–57, 216 P.3d 1089 (2009). As previously noted, indecent liberties is also “sexually violent” if the victim was under the age of 14. To define this crime, the court can use WPIC 49.01 (Indecent Liberties—Definition), omit the bracketed language regarding all alternatives, and add a requirement that the victim be under the age of 14.

Several other crimes are considered “sexually violent” only if proved beyond a reasonable doubt to have been committed with sexual motivation. For these crimes, the instruction defining the crime should be used with WPIC 2.26 (Sexual Motivation—Definition). Applicable crimes are defined in the following instructions: WPIC 26.01 (Murder—First Degree—Definition); WPIC 27.01 (Murder—Second Degree—Intentional—Definition); WPIC 27.03 (Murder—Second Degree—Felony—Definition); WPIC 35.01 (Assault—First Degree—Great Bodily Harm or Deadly Weapon—Definition); WPIC 35.03 (Assault—First Degree—Great Bodily Harm—Definition); WPIC 35.05 (Assault—First Degree—Poison—H.I.V.—Definition); WPIC 35.07 (Assault—First Degree (Alternate Means)—Deadly Weapon or Great Bodily Harm—Definition); WPIC 35.10 (Assault—Second Degree—Definition); WPIC 35.34 (Assault of a Child—First Degree—Definition); WPIC 35.36 (Assault of a Child—Second Degree—Definition); WPIC 39.01 (Kidnapping—First Degree—Definition); WPIC 39.10 (Kidnapping—Second Degree—Definition); WPIC 39.15 (Unlawful Imprisonment—Definition); WPIC 60.01 (Burglary—First Degree—Definition); and WPIC 60.02.01 (Residential Burglary—Definition).

Finally, any attempt, solicitation, or conspiracy to commit one of the crimes listed above constitutes a “sexually violent offense.” If there is evidence that the respondent will commit one of these anticipatory offenses, the court should use WPIC 100.01 (Attempt—Definition), WPIC 105.01 (Criminal Solicitation—Definition), or WPIC 110.01 (Criminal Conspiracy—Definition). The definitions of attempt and conspiracy will need to be modified slightly to fit the sexually violent predator proceeding. WPIC 100.01 (Attempt—Definition) would be modified to read: “A person attempts to commit a crime when ….” WPIC 110.01 (Criminal Conspiracy—Definition) would be modified to read: “A person commits the crime of conspiracy to commit an underlying crime when, with intent that conduct constituting the underlying crime be performed …”

In addition, this instruction will need to be modified, in relatively rare situations, when the initial commitment was not based on proof of conviction of a qualifying offense of sexual violence.