WPIC 19.18 Disclosing Intimate Images—Family Member of Minor—Defense

Use WPIC 49A.09 (Sexually Explicit Conduct—Definition) with this instruction.

Use the bracketed material as appropriate.

RCW 9A.86.010(5).

The Legislature created the new crime of disclosing intimate images in 2015. See Laws of 2015, 2d Sp. Sess., Chapter 7, § 1.

RCW 9A.86.010(5) provides that “It shall be an affirmative defense to a violation of this section that the defendant is a family member of a minor and did not intend any harm or harassment in disclosing the images of the minor to other family or friends of the defendant. This affirmative defense shall not apply to matters defined under RCW 9.68A.011.” RCW 9.68A.011 describes sexually explicit conduct.

According to State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994), “[g]enerally, an affirmative defense which does not negate an element of the crime charged, but only excuses the conduct should be proved [by the defendant] by a preponderance of the evidence.” The only examples given by the court, however, are alibi and self-defense, and neither Riker nor State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996), discusses this statutory defense. According to Lively, the absence of any direction in a statute evidences an intent to relegate the issue to the common law, or judicial precedent. State v. Lively, 130 Wn.2d at 10–11.

For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).

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).