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WPIC 45.04 Consent—Definition

11 WAPRAC WPIC 45.04Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 45.04 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VII. Sex Crimes
WPIC CHAPTER 45. Sex Offenses—Definitions
WPIC 45.04 Consent—Definition
Consent means that at the time of the act of sexual [intercourse] [contact] there are actual words or conduct indicating freely given agreement to have sexual [intercourse] [contact].
Use this instruction, as applicable, with WPIC 42.02 (Rape—Third Degree—Elements) or WPIC 49.02 (Indecent Liberties—Elements). Use the bracketed phrase “intercourse” in rape cases and the bracketed phrase “contact” when the crime charged is indecent liberties.
For cases involving first or second degree rape, see the Comment below.
RCW 9A.44.010(7).
An instruction on consent is generally not appropriate in prosecutions for first or second degree rape. To prove first degree rape, or second degree rape under RCW 9A.44.050(1)(a), the State must prove that sexual intercourse occurred by forcible compulsion. In the overwhelming majority of cases, the focus should be on forcible compulsion rather than consent. Except in unusual cases, an instruction on consent may confuse the jurors about the burden of proof, without providing them meaningful guidance. In State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014), the Washington Supreme Court held that although victim's alleged consent to sexual intercourse negated the “forcible compulsion” element of second-degree rape, a separate instruction on consent is not needed “simply because evidence of consent is produced.” State v. W.R., Jr., 181 Wn.2d at 767 n.3.
The court in State v. Knapp, 11 Wn.App.2d 375, 453 P.3d 1006 (2019), review granted 461 P.3d 497 (2020), found that the trial court properly rejected an instruction requiring the State to prove the absence of consent.
[Current as of July 2020.]
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