WPIC 36.95 Hate Crime—Threat of Harm—Inference
11 WAPRAC WPIC 36.95Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 36.95 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 36. Harassment, Hate Crimes, and Domestic Violence
WPIC 36.95 Hate Crime—Threat of Harm—Inference
A person who [burns a cross on property of another who is, or whom that person perceives to be, of African American heritage] [defaces property of another who is, or whom that person perceives to be, of Jewish heritage by defacing the property with a swastika] [defaces religious real property with words, symbols, or items that are derogatory to persons of the faith associated with the property] [places a vandalized or defaced religious item or scripture on the property of a victim who is or whom the actor perceives to be of the faith with which that item or scripture is associated] [damages, destroys, or defaces religious garb or other faith-based attire belonging to the victim or attempts to or successfully removes religious garb or other faith-based attire from the victim's person without the victim's authorization] [or] [places a noose on the property of a victim who is or whom the actor perceives to be of a racial or ethnic minority group] may be inferred to have intended to threaten that other person [or group of persons] on the basis of the [race] [ancestry] of that other person [or group of persons].
This inference is not binding upon you. You are to determine what weight, if any, to give this inference, based on a review of all the evidence in the case bearing on the issue of intent.
NOTE ON USE
The instruction should not be routinely used. For a discussion of the caution needed in using inferences and presumptions in criminal cases, see the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts).
Use this instruction for a Hate Crime offense committed after July 28, 2019. See Comment below.
Use the bracketed phrases indicating the nature of the conduct, and the individual or collective nature of the victim or victims, as appropriate.
COMMENT
RCW 9A.36.080(2). In 2019, the Legislature substantially altered RCW 9A.36.080, the former crime of Malicious Harassment, and created instead a new Hate Crime offense. Laws of 2019, Chapter 271, § 2 (effective July 28, 2019). For a Hate Crime offense, effective July 28, 2019, use WPICs 36.90, WPICs36.90, et seq, new for this edition.
For a discussion of the issues involved in using inferences or presumptions in criminal cases, see the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts).
The wording of the instruction is based upon the statute. The instruction does not, however, contain wording based on that portion of the statute reading “unless evidence exists which explains to the trier of fact's satisfaction that the person did not intend to threaten the victim or victims.” A similar provision of an inference instruction based on a statute in a burglary prosecution has been held to create a mandatory presumption in violation of due process protections. State v. Deal, 128 Wn.2d 693, 911 P.2d 996 (1996) (addressing the phrase “unless the entering or remaining shall be explained by evidence satisfactory to the jury to have been made without the inferred fact of intent”). The instruction also differs from the statute by not using the term “victim.”
[Current as of April 2020.]
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