WPIC 300.17 Aggravating Circumstance—Aggravated Domestic Violence [RCW 9.94A.535(3)(h)]
11A WAPRAC WPIC 300.17Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 300.17 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XVI. Exceptional Sentences—Aggravating Circumstances
WPIC CHAPTER 300. Exceptional Sentences—Aggravating Circumstances
WPIC 300.17 Aggravating Circumstance—Aggravated Domestic Violence [RCW 9.94A.535(3)(h)]
To find that this crime is an aggravated domestic violence offense, each of the following two elements must be proved beyond a reasonable doubt:
(1) That the victim and the defendant were [family or household members] [in a dating relationship]; and
(2) [(a)] [That the offense was part of an ongoing pattern of psychological, physical, or sexual abuse manifested by multiple incidents over a prolonged period of time;] [or]
[(b)] [That the offense was committed within the sight or sound of the [victim's] [defendant's] [child] [children] who were under the age of 18 years;] [or]
[(c)] [That the defendant's conduct during the commission of the offense manifested deliberate cruelty or intimidation of the victim.]
If you find from the evidence that element (1), and any of the alternative elements [(2)(a),] [(2)(b),] or [(2)(c)] have been proved beyond a reasonable doubt, then it will be your duty to answer “yes” on the special verdict form. To return a verdict of “yes,” the jury need not be unanimous as to which of alternatives [(2)(a),] [(2)(b),] or [(2)(c)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to element (1) or (2), then it will be your duty to answer “no” on the special verdict form.
NOTE ON USE
For the aggravating circumstance of aggravated domestic violence, 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).
Use the bracketed material as applicable. Insert only the particular circumstance(s) alleged, and omit the others. For a discussion of the definition of “prolonged period of time,” see Comment.
Use WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions) with this instruction.
Use WPIC 300.10 (Aggravating Circumstance—Deliberate Cruelty) with this instruction when alternative (2)(c) will be submitted to the jury.
COMMENT
RCW 9.94A.535(3)(h); RCW 10.99.020(5); RCW 10.99.020(3).).
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.
The aggravating circumstance for aggravated domestic violence was added to the Sentencing Reform Act in 1996. RCW 9.94A.535(3)(h). The pattern of abuse need not involve the same victim as the current offense. State v. Sweat, 180 Wn.2d 156, 322 P.3d 1213 (2014).
This statute references RCW 10.99.020, which sets out a non-exclusive list of crimes that constitute “domestic violence.” Not all the crimes on the list are “violent” in the ordinary sense, and some violent crimes do not appear on the list. If the current offense is not on the list, the court will need to decide whether that offense constitutes “domestic violence.” It is not clear whether that issue should be resolved by the court or submitted to the jury.
The cases construing the “prolonged period of time” requirement have not set a minimum length of time. For a discussion of these cases, see the Comment to WPIC 300.16 (Aggravating Circumstance—Ongoing Pattern of Sexual Abuse).
With one exception, the statutory presumption is that the pattern-of-abuse alternative will be presented to the jury in a separate, post-verdict proceeding. RCW 9.94A.537(4) (also stating the grounds upon which this statutory presumption may be overcome). The exception is when the presence of minor children or deliberate cruelty alternative is alleged. Then, the statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime.
For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:10 (3d ed.).
[Current as of April 2019.]
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