WPIC 45.03 Forcible Compulsion—Definition

Use with WPIC 40.02 (Rape—First Degree—Elements), WPIC 41.02 (Rape—Second Degree—Elements), and WPIC 49.02 (Indecent Liberties—Elements).

RCW 9A.44.010(6).

See the Comment to WPIC 18.25 (Consent—First or Second Degree Rape or Indecent Liberties—Defense).

Forcible compulsion means that the force exerted was directed at overcoming the victim's resistance and was more than that normally required to achieve penetration. State v. Wright, 152 Wn.App. 64, 71, 214 P.3d 968 (2009); State v. McKnight, 54 Wn.App. 521, 774 P.2d 532 (1989). Although consent negates 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). A rape defendant's proposed instruction that it was the State's burden to prove the absence of consent beyond a reasonable doubt was an incorrect statement of the law; the defendant must put consent at issue, but it need only create reasonable doubt as to consent. State v. Knapp, 11 Wn.App.2d 375, 453 P.3d 1006 (2019), review granted 461 P.3d 497 (2020). Under some circumstances, the resistance by the victim required to show forcible compulsion need not be physical resistance. Instead, it “is a fact sensitive determination based on the totality of the circumstances, including the victim's words and conduct.” State v. McKnight, 54 Wn.App. at 526. See also State v. Corey, 181 Wn.App. 272, 325 P.3d 250 (2014) (victim's testimony that defendant tried to “forcibly put his fingers inside” her was too vague to support finding of forcible compulsion).

In the absence of physical force, a finding of forcible compulsion cannot be based solely on the victim's subjective reaction to particular conduct. A defendant saying “go ahead and lay down anyway,” after a mentally disabled woman expressed reservations, was insufficient to support a finding of forcible compulsion for a second degree rape conviction. The victim must perceive a threat, and the defendant must communicate an intent to inflict physical injury in order to coerce compliance. State v. Weisberg, 65 Wn.App. 721, 725, 829 P.2d 252 (1992). There must be a causal connection between the fear and the communicated threat. State v. Higgins, 168 Wn.App. 845, 278 P.3d 693 (2012). See also the Comment to WPIC 45.05 (Mentally Incapacitated—Physically Helpless—Definition).