WPIC 300.16 Aggravating Circumstance—Ongoing Pattern of Sexual Abuse [RCW 9.94A.535(3)(g)]

For the aggravating circumstance of an ongoing pattern of sexual abuse, use the above instruction to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

RCW 9.94A.535(3)(g).

A previous version of this instruction included a statement that “‘prolonged period of time’ means more than a few weeks.” In State v. Brush, 183 Wn.2d 550, 353 P.3d 213 (2015), the court held that this statement was an unlawful comment on the evidence in violation of the Washington Constitution. The statement was therefore removed from the instruction.

This aggravating circumstance was codified as part of the Sentencing Reform Act in 1987. The aggravating circumstance had previously existed as a part of the common law. See, e.g., State v. Daniels, 56 Wn.App. 646, 654–55, 784 P.2d 579 (1990).

The cases discussing a “prolonged period of time” have not set a minimum length of time. Compare State v. Atkinson, 113 Wn.App. 661, 671–72, 54 P.3d 702 (2002) (domestic violence abuse occurring over period of 7 to 10 months, during which time at least three incidents of abuse required the victim to seek medical attention, was sufficient to establish an ongoing pattern of abuse), and State v. Bell, 116 Wn.App. 678, 684, 67 P.3d 527 (with respect to an offense occurring in July of 2001, the court stated that “whether the abuse began in September 2000, Christmas 2000, or spring 2001, the abuse was prolonged”), and State v. Daniels, 56 Wn.App. 646, 784 P.2d 579 (1990) (multiple beatings within the five-month charging period was sufficient to support a pattern of abuse over a prolonged period), and State v. Epefanio, 156 Wn.App. 378, 392, 234 P.3d 253 (2010) (jury could find that abuse for 5–6 weeks covered “a prolonged period of time”), with State v. Barnett, 104 Wn.App. 191, 16 P.3d 74 (2001) (two weeks is not sufficient to prove a pattern of sexual abuse over a prolonged period of time for purposes of the domestic violence aggravating circumstance at former RCW 9.94A.390(2)(h)), and State v. Quigg, 72 Wn.App. 828, 841, 866 P.2d 655 (1994) (sexual abuse over a period of three days is insufficient to demonstrate an ongoing pattern).

The statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4). However, the court may find it necessary to bifurcate the proceedings if the state seeks to offer evidence as to the aggravating circumstance that would not be admissible as to the charged offense

For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:9 (3d ed.).