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WPIC 19.18 Disclosing Intimate Images—Family Member of Minor—Defense

11 WAPRAC WPIC 19.18Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.18 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.18 Disclosing Intimate Images—Family Member of Minor—Defense
It is a defense to the crime of disclosing intimate images that:
(1) the defendant is a family member of the minor;
(2) the defendant did not intend any [harm] [or] [harassment] in disclosing the images of the minor to other [family] [or] [friends] of the minor; and
(3) the images did not depict sexually explicit conduct.
The defendant must prove this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence, that it is more probably true than not true. If the defendant has established this defense, it will be your duty to return a verdict of not guilty [on this charge].
Use WPIC 49A.09 (Sexually Explicit Conduct—Definition) with this instruction.
Use the bracketed material as appropriate.
RCW 9A.86.010(5).
The Legislature created the new crime of disclosing intimate images in 2015. See Laws of 2015, 2d Sp. Sess., Chapter 7, § 1.
RCW 9A.86.010(5) provides that “It shall be an affirmative defense to a violation of this section that the defendant is a family member of a minor and did not intend any harm or harassment in disclosing the images of the minor to other family or friends of the defendant. This affirmative defense shall not apply to matters defined under RCW 9.68A.011.” RCW 9.68A.011 describes sexually explicit conduct.
According to State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994), “[g]enerally, an affirmative defense which does not negate an element of the crime charged, but only excuses the conduct should be proved [by the defendant] by a preponderance of the evidence.” The only examples given by the court, however, are alibi and self-defense, and neither Riker nor State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996), discusses this statutory defense. According to Lively, the absence of any direction in a statute evidences an intent to relegate the issue to the common law, or judicial precedent. State v. Lively, 130 Wn.2d at 10–11.
For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).
A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).
Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).
[Current as of May 2019.]
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