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WPIC 49A.05.02 Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Disseminat...

11 WAPRAC WPIC 49A.05.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 49A.05.02 (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 49A. Sexual Depictions Of Minors
WPIC 49A.05.02 Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Elements
To convict the defendant of the crime of dealing in depictions of a minor engaged in sexually explicit conduct 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 knowingly [developed] [duplicated] [published] [printed] [disseminated] [exchanged] [attempted to finance] [financed] [or] [sold] visual or printed matter depicting a minor engaged in sexually explicit conduct of any of the following types:
[(a)] [[[sexual intercourse], including [genital-genital] [oral-genital] [anal-genital] [or] [oral-anal],] [between persons of the same or opposite sex] [or] [between humans and animals]] [or]
[(b)] [penetration of the [vagina] [or] [rectum] by any object] [or]
[(c)] [masturbation] [or]
[(d)] [sadomasochistic abuse] [or]
[(e)] [defecation or urination for the purpose of sexual stimulation of the viewer];
[(2)] [That the defendant knew the person depicted was a minor;]
[(3)] That the defendant was eighteen years of age or older; 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
This instruction is to be used only for cases charging first degree dealing in depictions under RCW 9.68A.050(1)(a)(i). For cases charging first degree dealing in depictions under RCW 9.68A.050(1)(a)(ii), use WPIC 49A.07.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—First Degree—Elements) instead of this instruction. See the Comment below for information on using the pattern instructions for dealing in depictions.
Use bracketed language as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).
With regard to using the bracketed element (2), see the Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements). 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 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense). If element (2) is omitted and the defendant raises the affirmative defense that he or she had no information upon 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.
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).
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).
COMMENT
RCW 9.68A.050(1)(a)(i) and RCW 9.68A.011(4)(a) through (e). This instruction was revised for this edition.
Dealing in depictions instructions. One form of dealing in depictions involves selling, exchanging, disseminating, publishing, duplicating, and the like, while the other form of the offense involves possessing depictions with the intent to sell, exchange, disseminate, publish, or duplicate them. WPIC 49A.05.01 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Definition), WPIC 49A.05.02, WPIC 49A.06.01 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—Second Degree—Definition), and WPIC 49A.06.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—Second Degree—Elements) apply to the first category (“Dissemination”) in the first and second degree. WPIC 49A.07.01 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—First Degree—Definition), WPIC 49A.07.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—First Degree—Elements), WPIC 49.08.01 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—Second Degree—Definition), and WPIC 49.08.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—Second Degree—Elements) apply to the second category (“Possession with Intent to Disseminate”) in the first and second degree.
The degree of each offense is determined by the nature of the sexually explicit conduct depicted: first degree offenses involve depictions of sexually explicit conduct as defined in subsections (a) through (e) of RCW 9.68A.011(4), while second degree offenses involve depictions of conduct as defined in subsections (f) and (g) of RCW 9.68A.011(4). For further discussion of first and second degree child pornography offenses, see the Comment to WPIC 49A.03.01 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Definition). Practitioners are advised to exercise care when using the pattern instructions in a specific case of dealing in depictions, to ensure that the instruction is appropriate for the form of dealing charged as well as the degree of the offense charged.
Element (3), requiring that the defendant be older than 18 years old for both first and second degree dealing in depictions, is the result of 2019 amendments to RCW 9.68A.050(1)(a) and (2)(a). The amendments apply to both first and second degree dealing in depictions. In State v. Gray, 189 Wn.2d 334, 402 P.3d 254 (2017), the Washington Supreme Court found that a 17-year-old who sent a picture of his own penis to an adult woman was properly charged with second degree dealing in depictions. The statutory amendments eliminate that scenario.
Constitutional issues. The statute dealing with depictions of minors is not unconstitutionally vague or overbroad under the federal and state constitutions. State v. Gray, 189 Wn.2d at 348. The statute does not violate the first amendment; child pornography is one of the forms of expression not protected if the conduct is “adequately defined by the applicable state law, as written or authoritatively construed,” as it is in this statute. State v. Gray, 189 Wn.2d at 348 (citing New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)).
For a discussion of knowledge of the age of the child, degrees of the offense, unit of prosecution, and the statutory defense, see the Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements).
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).
[Current as of June 2020.]
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