WPIC 49A.03.02 Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First D...

Use this instruction with WPIC 47.09 (Minor—Definition) and WPIC 49A.10 (Visual or Printed Matter—Definition). If the court has determined that knowledge of the minority of the person depicted is an element of the offense, then also use WPIC 10.02 (Knowledge—Knowingly—Definition).

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

With regard to using the bracketed element (2), see the Comment below. The jury should not be given both WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense) and the bracketed element (2) regarding the defendant's knowledge that the person depicted was a minor. If element (2) is used, do not use WPIC 19.04.04. If element (2) is omitted and the defendant raises the affirmative defense that he or she had no information based on which he or she could reasonably have known the person depicted was a minor, then use WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense) with this instruction.

For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9.68A.070(1)(a) and RCW 9.68A.011(4)(a)–(e).

First Amendment. Depictions of minors engaging in sexual acts are not protected by the First Amendment and their production, distribution, and possession may be prohibited even if the depictions do not qualify as obscenity. New York v. Ferber, 458 U.S. 747, 751–53, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (production and distribution of non-obscene child pornography may be criminalized); Osborne v. Ohio, 495 U.S. 103, 113, 110 S.Ct. 1691, 1698, 109 L.Ed.2d 98 (1990) (simple possession of child pornography may be criminalized). To avoid First Amendment issues, “the conduct to be prohibited must be adequately defined by the applicable state law,” and further, “criminal responsibility may not be imposed without some element of scienter on the part of the defendant.”

The Washington Supreme Court has held that RCW 9.68A.070 is “unquestionably constitutional. … [P]ossession of materials depicting actual minors engaged in sexually explicit conduct may be criminalized, provided that the offense includes a scienter element.” State v. Luther, 157 Wn.2d 63, 70–71, 134 P.3d 205 (2006).

Knowledge of age of child. Neither RCW 9.68A.050 nor .070 specifically provide that the defendant must know the person depicted is a minor, and under RCW 9.68A.110(2), “it is not a defense that the defendant did not know the age of” the depicted child. This statutory language may raise issues of overbreadth. In State v. Rosul, 95 Wn.App. 175, 185, 974 P.2d 916 (1999), the court held that although the State must show that the defendant knew the general nature of the illegal material, it need not prove the defendant knew the person depicted was a minor. The court held that so long as the statute is construed to require proof that the defendant knew the general nature of the material, the statute passes constitutional muster.

Decisions of the United States Supreme Court support providing clear instructions to the jury on scienter, including knowledge that sexually explicit depictions are of minors. In United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the court held that the knowledge element in a federal law prohibiting distributing and receiving child pornography applied to the age of the persons depicted and the sexually explicit nature of the material. The court explained that “the age of the performers is the crucial element separating legal innocence from wrongful conduct” and that “a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” United States v. X-Citement Video, Inc., 513 U.S. at 73, 78. Similarly in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), the Supreme Court struck down as overbroad two provisions of a federal child pornography statute that expanded the definition of child pornography to include sexually explicit depictions that merely “appear to be” of minors and depictions that are advertised or promoted in a way that “conveys the impression” that the depictions contain minors. In United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), the court upheld a statute prohibiting offers to provide and requests to obtain child pornography, in part because the statutory requirement of knowledge “applies to every element” of the challenged provisions. United States v. Williams, 553 U.S. at 294.

In light of these First Amendment cases, the WPI Committee has included the bracketed element (2), if the court determines that the State is required to prove that the defendant knew that the person being depicted was a minor. As explained in the Note on Use, under no circumstances should this instruction include the bracketed element (2) regarding the defendant's knowledge that the person depicted was a minor and WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense). Requiring the State to prove the defendant's knowledge is incompatible with the statutory affirmative defense. If element (2) is omitted from this instruction and the defendant raises the affirmative defense that he or she lacked information on the basis of which he or she could reasonably have known the person depicted was a minor, then also give the jury WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense).

First and second degree offenses. In 2010, the Legislature amended the child pornography statutes to create first and second degrees of the offenses. First degree offenses involve depictions of sexually explicit conduct as defined in RCW 9.68A.011(4)(a) through (e) (sexual intercourse, penetration of the vagina or rectum, masturbation, sadomasochistic abuse, and defecation or urination for the purpose of sexually stimulating the viewer), while second degree offenses involve depictions of sexually explicit conduct as defined in subsections (f) and (g) (depictions of a minor's genitals, unclothed pubic or rectal areas, or unclothed breasts, or touching of a person's clothed or unclothed genitals, pubic area, buttocks, or breasts, for the purpose of sexually stimulating the viewer).

Unit of prosecution. The Legislature amended the statute in 2010 to provide that in cases of first degree possession of depictions, “each depiction or image of visual or printed matter constitutes a separate offense,” whereas in cases of second degree possession of depictions, “each incident of possession of one or more depictions or images of visual or printed matter constitutes a separate offense.” RCW 9.68A.070(1)(c) and (2)(c). In so doing, the Legislature indicated that its intent was “to clarify, in response to State v. Sutherby, 165 Wn.2d 870 (2009), the unit of prosecution” for possession of and dealing in depictions of minors engaged in sexually explicit conduct. Laws of 2010, Chapter 227, § 1. When more than one count of first degree possession of depictions is charged, the jury must be provided a separate elements instruction (WPIC 49A.03.02) and a separate verdict form (WPIC 180.01) for each count charged. The unit of prosecution for the crime of possession of depictions of minor engaged in sexually conduct in the second degree differs from that for the first degree offense. See State v. Polk, 187 Wn.App. 380, 348 P.3d 1255 (2015).

Multiple depictions per count. For cases involving multiple photographs or images per count, see the Notes on Use and Comments to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) and WPIC 4.26 (Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act). For cases involving multiple counts, care must be taken to instruct the jurors that a particular photograph or image can support only a single count. See the discussion in the Note on Use and Comment to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction).

Actual control. In State v. Garbaccio, 151 Wn.App. 716, 738, 214 P.3d 168 (2009), the court held it was not improper to refuse to given an instruction directing the jury to find the defendant acted without knowledge if he immediately deleted files containing images of child pornography as soon as he discovered the content. The court noted, however, that in a case involving evidence of inadvertent downloading and immediate deletion of downloaded pornography, it may be appropriate to instruct the jury that it may consider the duration of the defendant's control over the material in determining whether the State has carried its burden on the element of possession. State v. Garbaccio, 151 Wn.App. at 736.

Attempts. In State v. Luther, 125 Wn.App. 176, 105 P.3d 56 (2005), affirmed, 157 Wn.2d 63, 134 P.3d 205 (2006), an attempt to possess child pornography did not implicate the First Amendment even when the materials did not actually involve minors, because the attempt was with intent to obtain pictures of a minor engaging in sexually explicit conduct.

Statutory defense. Separate from the constitutional issue noted above, RCW 9.68A.110(2) creates a defense for a person who was not in possession of any facts by which the person should reasonably have known that the depicted person was a minor.