WPIC 36.91 Hate Crime—Definition

Use this instruction only for a Hate Crime offense committed after July 28, 2019. For the offense of Malicious Harassment occurring before July 28, 2019 use WPIC 36.01 (Malicious Harassment—Definition). See Comment below.

Use this instruction if it will help the jury understand the charged offense or if it is necessary to define this particular offense for the jury. See the Comment to WPIC 4.24 (Definition of the Crime—Form).

Use the bracketed material as applicable. Use the bracketed clause about causing physical injury to a person if WPIC 36.91 (Hate Crime—Physical Injury—Elements) is given. Use the clause about causing physical damage to property if WPIC 36.94 (Hate Crime—Physical Harm to or Destruction of Property—Elements) is given. Use the bracketed clause about threatening another if WPIC 36.93 (Hate Crime—Threat of Harm to Person or Property—Elements) is given.

With this instruction, use WPIC 2.13 (Malice—Maliciously—Definition) and WPIC 10.01 (Intent—Intentionally—Definition). Also use, as applicable, WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definitions).

If sexual orientation or “gender expression or identity” is the basis for the charge, use WPIC 36.91.01 (Hate Crime—Sexual Orientation, Gender Expression or Identity—Definition) with this instruction.

RCW 9A.36.080(1). In 2019, the Legislature substantially altered RCW 9A.36.080, the former crime of Malicious Harassment, and created instead a new Hate Crime offense. Laws of 2019, Chapter 271, § 2 (effective July 28, 2019). For a Hate Crime offense, effective July 28, 2019, use WPICs 36.90, WPICs36.90, et seq, new instructions for this edition.

The elements of Malicious Harassment under the former statute, and a Hate Crime offense are similar, but not identical. Caselaw cited in this comment frequently arises from the former crime of malicious harassment; applicable elements should be carefully compared.

The statute is written in terms of the defendant's “perception of the victim's race, color, [and other designated protected characteristics.]” RCW 9A.36.080(1). The Legislature's use of the term “the victim's” in this context gives rise to uncertainty, inasmuch as the Legislature thereafter uses the phrase “victim or another person” in subparagraphs (a) and (b). Resolving the uncertainty may require a determination of whether “the victim's” in paragraph (1) refers to the victim of the harmful act, or, on the other hand, the “victim” of the actor's malice.

The term “mental, physical or sensory disability” is not defined within RCW 9A.36.080. The Legislature expressly recognized the state interest in preventing crimes and threats motivated by bigotry and bias. RCW 9A.36.078. In an appropriate case, the practitioner may find the definition of disability and impairment in cases of discrimination to be useful. See RCW 49.60.040(7).

The WPI Committee has not attempted to interpret the statute and has therefore drafted the instruction in the express statutory language, including the term “the victim's,” which is generally avoided in other pattern instructions.

For discussion of the constitutionality of the former charge of Malicious Harassment under former RCW 9A.36.080(1) generally, see the Comment to WPIC 36.02 (Malicious Harassment—Physical Injury—Elements).