WPIC 49B.05 Custodial Sexual Misconduct—Second Degree—Correctional Worker—Elements
11 WAPRAC WPIC 49B.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 49B.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VII. Sex Crimes
WPIC CHAPTER 49B. Custodial Sexual Misconduct
WPIC 49B.05 Custodial Sexual Misconduct—Second Degree—Correctional Worker—Elements
To convict the defendant of the crime of custodial sexual misconduct in the second 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 contact with (name of person);
(2) That at the time the defendant was [an employee] [or] [a contract worker] of a correctional agency who had, or who (name of person) reasonably believed to have, the ability to influence the terms, conditions, length, or fact of [incarceration] [or] [correctional supervision];
(3) That at the time (name of person) was a resident of a state, county, or city adult or juvenile correctional facility or was under correctional supervision; 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 second degree custodial sexual misconduct involving a correctional employee or contract worker. For cases that involve a law enforcement officer, use WPIC 49B.06 (Custodial Sexual Misconduct—Second Degree—Law Enforcement Officer—Elements) instead of this instruction.
Use WPIC 45.07 (Sexual Contact—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.44.170.
The statute also criminalizes sexual contact between a law enforcement officer and an individual who is being detained, under arrest, or in the custody of a law enforcement officer. RCW 9A.44.170. The consent of the victim is not a defense to this crime. RCW 9A.44.170(2).
An affirmative defense, however, exists for an employee of a correctional facility or a law enforcement officer who is forced to engage in sexual contact. RCW 9A.44.180. The defendant bears the burden of establishing by a preponderance of the evidence that the act of sexual contact resulted from forcible compulsion by the other person. RCW 9A.44.180. See WPIC 19.04.05 (Custodial Sexual Misconduct—Forcible Compulsion—Defense).
In State v. Clapper, 178 Wn.App. 220, 227, 313 P.3d 497 (2013), the court held that RCW 9A.44.160, which defines custodial sexual misconduct in the first degree, is not unconstitutionally vague. Clapper held that the phrase “ability to influence” provides fair warning that a corrections officer would be penalized for having sex with an inmate, even if the officer's authority was limited to initiating the disciplinary process by writing an infraction, and further that the inmate reasonably believed that the officer had the ability to influence the terms and conditions of her incarceration. State v. Clapper, 178 Wn.App. at 226–27.
The statute uses the term “contract personnel,” while the instruction uses “contract worker.” The WPI Committee substituted this simpler term without intending any substantive change.
[Current as of March 2020.]
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