WPIC 300.25 Aggravating Circumstance—Invasion of Privacy [RCW 9.94A.535(3)(p)]

For the aggravating circumstance involving an invasion of privacy, use the applicable bracketed clause from 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)(p).

This aggravating circumstance was added to the Sentencing Reform Act in 2005. The accompanying legislative history indicates that the statutory language was designed to codify existing common law aggravating circumstances. Laws of 2005, Chapter 68, § 1 (effective April 15, 2005). Nonetheless, the language used by the Legislature deviates from the common law phrase.

Under the common law, an exceptional sentence could be predicated upon a violation of the victim's “zone of privacy.” Exceptional sentences predicated upon a violation of the victim's zone of privacy have been affirmed in rape cases. See, e.g., State v. Lough, 70 Wn.App. 302, 336, 853 P.2d 920 (1993), affirmed, 125 Wn.2d 847, 889 P.2d 487 (1995) (rape in victim's living room); State v. Delarosa-Flores, 59 Wn.App. 514, 799 P.2d 736 (1990) (rape in victim's home); State v. Falling, 50 Wn.App. 47, 55, 747 P.2d 1119 (1987) (victim raped in her bedroom). Under the former first degree burglary statute, application of this aggravating circumstance was held improper because invasion of privacy was inherent in that crime. State v. Lough, 70 Wn.App. at 336; State v. Post, 59 Wn.App. 389, 400–02, 797 P.2d 1160 (1990), affirmed on other grounds, 118 Wn.2d 596, 826 P.2d 172, amended by 837 P.2d 599 (1992). At the time these cases were decided, the crime of first degree burglary required entry into a dwelling. The statute was subsequently amended to cover unlawful entry into any kind of building. Under the amended statute, this aggravating circumstance does apply to first degree burglary. State v. Coleman, 152 Wn.App. 552, 565–66, 216 P.3d 479 (2009).

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).

For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:18 (3d ed.).