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WPIC 49B.03 Custodial Sexual Misconduct—First Degree—Law Enforcement Officer—Elements

11 WAPRAC WPIC 49B.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 49B.03 (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 49B. Custodial Sexual Misconduct
WPIC 49B.03 Custodial Sexual Misconduct—First Degree—Law Enforcement Officer—Elements
To convict the defendant of the crime of custodial sexual misconduct in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant engaged in sexual intercourse with (name of person);
(2) That at the time (name of person) was [being detained by] [under arrest by] [or] [in the custody of] a law enforcement officer;
(3) That at the time the defendant was a law enforcement officer; and
(4) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction for cases of custodial sexual misconduct involving a law enforcement officer. For cases that involve a correctional worker, use WPIC 49B.02 (Custodial Sexual Misconduct—First Degree—Correctional Worker—Elements) instead of this instruction.
Use WPIC 45.01 (Sexual Intercourse—Definition) with this instruction. If the statutory defense is in issue, use WPIC 19.04.05 (Custodial Sexual Misconduct—Forcible Compulsion—Defense).
For a discussion of the phrase “this act” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.44.160.
In State v. Torres, 151 Wn.App. 378, 212 P.3d 573 (2009), the court upheld the trial court's decision to use the common law definition of “detained” in a jury instruction defining custodial sexual misconduct. The instruction given by the trial court in Torres was as follows:
“Being detained by” or “in the custody of a law enforcement officer” means restraint on freedom of movement to such a degree that a reasonable person would not have felt free to leave.
State v. Torres, 151 Wn.App. at 385 (footnote omitted).
For further discussion, see the Comment to WPIC 49B.02 (Custodial Sexual Misconduct—First Degree—Correctional Worker—Elements).
[Current as of March 2020.]
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