WPIC 19.04.04 Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Co...
11 WAPRAC WPIC 19.04.04Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.04.04 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.04.04 Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense
It is not a defense to the charge of [possession of] [or] [dealing in] depictions of a minor engaged in sexually explicit conduct that the defendant did not know the age of the child depicted in the visual or printed matter.
It is, however, a defense to the charge of [possession of] [or] [dealing in] depictions of a minor engaged in sexually explicit conduct that at the time of the [possession] [dealing] the defendant was not in possession of any facts on the basis of which he or she should reasonably have known that the person depicted was a minor.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use this instruction if the statutory defense is in issue, along with WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements), WPIC 49A.04.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—Second Degree—Elements), WPIC 49A.05.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Elements), WPIC 49A.06.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—Second Degree—Elements), WPIC 49A.07.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent To Disseminate—First Degree—Elements), or WPIC 49A.08.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent To Disseminate—Second Degree—Elements).
Do not use this instruction if the court determines that knowledge that the person depicted was a minor is an element of the offense. See Comment.
Use the bracketed material as applicable.
COMMENT
RCW 9.68A.110(2).
The statute provides that this defense must be proved by the defendant by a preponderance of the evidence.
Constitutional concerns may exist with respect to placing the burden of proof on the statutory defense upon the defendant because it is still unsettled whether the prosecution must establish that the defendant knew the age of the child victim. See Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements). If the jury is instructed that the defendant must know that the person depicted is a minor, then this instruction should not be submitted to the jury.
For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).
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).
[Current as of February 2019.]
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