WPIC 40.02 Rape—First Degree—Elements

Use bracketed material as applicable.

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For the related jury interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to follow the format set forth in WPIC 4.21 (Elements of the Crime—Form).

Use WPIC 45.01 (Sexual Intercourse—Definition) and WPIC 45.03 (Forcible Compulsion—Definition) with this instruction. Select other appropriate definitions for other terms that are used: WPIC 10.51 (Accomplice—Definition), WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive), WPIC 2.03 (Bodily Injury—Physical Injury—Definition), WPIC 40.03 (Rape—First Degree—Feloniously Enters a Building—Definition). For definitions relating to kidnapping, see the instructions in WPIC Chapter 39.

For a discussion of the phrase “any of these acts,” see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.44.040.

Accomplice. The term accomplice has been substituted for the word accessory that is used in the statute. RCW 9A.08.020 defines the term accomplice in relation to liability for the conduct of another person.

Knowledge. The Washington Supreme Court in State v. Ciskie, 110 Wn.2d 263, 751 P.2d 1165 (1988), rejected the argument that knowledge is an implicit element of rape and held that the trial court did not err in failing to instruct the jury on knowledge in a rape prosecution.

Consent. Although consent negates the element of forcible compulsion, no separate instruction on consent is needed. State v. W.R., Jr., 181 Wn.2d 757, 767, n.3, 336 P.3d 1134 (2014). State v. Ortiz-Triana, 193 Wn.App. 769, 373 P.3d 335 (2016).

Threat/deadly weapon alternative. When the defendant is accused of threatening to use a deadly weapon while committing a rape, the State need not prove that the defendant actually used a deadly weapon. It is sufficient to prove that the defendant threatened to use a deadly weapon. State v. Hentz, 99 Wn.2d 538, 663 P.2d 476 (1983) (defendant threatened to “shoot” victim with toy pistol, which she believed was a real pistol). Moreover, in State v. Coe, 109 Wn.2d 832, 750 P.2d 208 (1988), the court concluded that the element of first degree rape requiring use or threat of use of a deadly weapon is satisfied by the threat itself, without evidence of the actual existence of a deadly weapon.

A police officer transporting a woman in his custody was properly convicted of first degree rape when he used the implicit threat of his holstered gun to accomplish a rape. State v. Bright, 129 Wn.2d 257, 271–72, 916 P.2d 922 (1996). See also State v. Lubers, 81 Wn.App. 614, 620–21, 915 P.2d 1157 (1996) (“Not all threats come via words; a non-verbal threat can be every bit as menacing.”).

The threatened use of a deadly weapon can occur at any point during the rape; evidence that a defendant produced a gun only after the rape was already in progress was not support for giving a second degree rape instruction. State v. Brown, 127 Wn.2d 749, 903 P.2d 459 (1995). Ciskie also held that the trial court did not comment on the evidence by defining “threat” for the jury. The court found that the definition given was in accordance with the definition of “threat” set forth in RCW 9A.04.110 and did no more than accurately state the law pertaining to an issue in the case.

Alternative means—Serious physical injury. The Court of Appeals has stated in dictum that the court should not attempt to define the term “serious physical injury” for the jury. The Court of Appeals stated that the term “speaks for itself, is adaptable to the type of injury in issue and permits argument both pro and con.” State v. Welker, 37 Wn.App. 628, 683 P.2d 1110 (1984); State v. Taitt, 93 Wn.App. 783, 970 P.2d 785 (1999). See also the discussion of serious physical injury in the Comment to WPIC 2.03.01 (Substantial Bodily Harm—Definition).

Alternative means—Kidnapping. Kidnapping as used in the first degree rape statute is used in the generic sense and includes both kidnapping in the first and second degrees. State v. Pawling, 23 Wn.App. 226, 597 P.2d 1367 (1979).

Alternative means—Burglary. A defendant who commits rape in the course of a first degree burglary is guilty of first degree rape. If the defendant feloniously entered into the building, there is no requirement to prove an intent to commit rape at the time of the illegal entry. State v. Demos, 94 Wn.2d 733, 619 P.2d 968 (1980).

When the charge is based upon a felonious entering of a building or vehicle, the definition of the offense includes the element of intent to commit a crime (see WPIC 40.03). In State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985), a burglary case, the court held that because the statutory definition of burglary referred simply to an intent to commit a crime, the State was not required to prove an intent to commit a specific crime, and it was sufficient to instruct the jury in the language of the statutory definition.

The court in Bergeron acknowledged the possibility that in some cases, the specific crime intended may be material to the defendant's theory of the case as, for example, when the defendant claims to have entered or remained in the premises for some lawful purpose. In this situation, the court said, the defendant's remedy is to move for a bill of particulars and to then propose supplementary instructions that will permit the defendant to argue his or her theory of the case.

In State v. Bargas, 52 Wn.App. 700, 763 P.2d 470 (1988), the Court of Appeals found that the Bergeron rationale applies “equally” when a charge of first degree rape is based upon a felonious entry of a building or vehicle. The court in Bargas held that the trial court did not err in failing to instruct the jury as to the specific crime the defendant intended to commit upon entering the victim's apartment.

See the Comment to WPIC 40.03 (Rape—First Degree—Feloniously Enters a Building—Definition).

Jury unanimity. In State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987), the court held that jury unanimity is not necessary as to alternative means under the first degree rape statute, if each charged alternative is supported by substantial evidence. In Whitney, the court found that the trial court did not err in failing to instruct the jury that unanimity was required on at least one of the two alternate means of committing first degree rape. However, the court noted that “an instruction on jury unanimity as to the alternative method found is preferable because it eliminates potential problems which may arise when one of the alternatives is not supported by substantial evidence.” State v. Whitney, 108 Wn.2d at 511. The court further noted that normally a general instruction on the requirement of unanimity will suffice “to instruct the jury that they must be unanimous on whatever specifications form the basis of the guilty verdict.” State v. Whitney, 108 Wn.2d at 512 (quoting U.S. v. Payseno, 782 F.2d 832, 835 (9th Cir. 1986)).

Recent cases have affirmed Whitney in non-sexual assault cases. State v. Garcia Gomez, 7 Wn.App.2d 441, 434 P.3d 88 (2019) (assault second degree alternative means of deadly weapon and strangulation did not require unanimity instruction); State v. Gonzales 133 Wn.App. 236, 148 P.3d 1046 (2006) (burglary second degree which can be committed by entering or remaining in a residence with intent to commit a crime did not require unanimity).