WPIC 2.27 Family or Household Member and Intimate Partner—Definitions

Use this instruction when a statute references the definition of family or household members as used in RCW 10.99.020. Use this instruction for gross misdemeanor offenses charged under RCW 9A.36.041(1) and (2). Use this instruction for felony assault in the fourth degree charged under RCW 9A.36.041(3) only if the offense occurred after March 18, 2020.

Do not use this instruction for felony assault in the fourth degree charged under RCW 9A.36.041(3) for an incident occurring between July 23, 2017 and March 18, 2020. Instead, use WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition), which has a different definition of “family or household member.”

Do not use this instruction for unlawful possession of a firearm second degree, RCW 9.41.040. See WPIC 133.02.03 (Unlawful Possession of a Firearm—Second Degree—Previous Domestic Violence Conviction—Elements).

Use the bracketed phrase or phrases that are relevant to the case. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

If a case involves registered domestic partners, and if it becomes necessary to define the term for jurors, an instruction can be drafted using language from RCW Chapter 26.60.02.

Use the special verdict form at WPIC 190.11 (Special Verdict Form—Family or Household Member or Intimate Partner).

RCW 10.99.020(3); RCW 26.50.010(6) and (7).

This instruction has been amended for this edition. Before legislative amendments in 2019, the statute included intimate partner within the definition of family or household member. RCW 26.50.010. Statutory amendment in 2019 distinguished intimate partner conduct. Laws of 2019, Chapter 263, § 204. However, the Legislature intended the distinction between family or household members and intimate partners only “to facilitate discrete data analysis” and did “not intend for these modifications to definitions to substantively change the prosecution … or … penalties for domestic violence.” Laws of 2019, Chapter 263, § 201. Therefore, this amended instruction can be used for qualifying offenses involving domestic violence regardless of the date of commission.

This instruction should be used when a statute references the definition of family or household members as used in RCW 10.99.020. See, for example, WPIC 133.02.03 (Unlawful Possession of a Firearm—Second Degree—Previous Domestic Violence Conviction—Elements).

This instruction should not be used with a crime of felony assault in the fourth degree in violation of RCW 9A.36.041(3) if the charge occurred between July 23, 2017, and March 18, 2020. During this short timeframe, felony assault in the fourth degree, RCW 9A.36.041(3), required a more restrictive definition of the term “family or household member” than used for other offenses. New instructions have been created for this edition (WPIC35.25.01 and WPIC35.26.01 35.26.01) that include the correct definition of family or household member if the charge is felony assault in the fourth degree, charged under RCW 9A.36.041(3) after July 23, 2017 and before March 18, 2020.

Effective March 18, 2020, the Legislature amended RCW 9A.36.041(3) to align the definition of domestic violence for felony assault fourth degree with the gross misdemeanor offense and other statutes. Laws of 2020, Chapter 29, § 7(3)(b). This instruction should be used to define domestic violence for all charges of gross misdemeanor assault fourth degree, and for all felony assault fourth degree offenses occurring after March 18, 2020.

A minor sister-in-law who does not reside with the defendant is not a family or household member. State v. Garnica, 105 Wn.App. 762, 20 P.3d 1069 (2001).

A minor who resides with the defendant because the minor's mother is in a relationship with the defendant, but who is not related to the defendant either biologically or by marriage, is not a family or household member. State v. Munoz-Rivera, 190 Wn.App. 870, 361 P.3d 182 (2015).

The statutes use the term “family or household member” primarily to designate the crimes that constitute domestic violence offenses. See RCW 10.99.020 and RCW 26.50.010. Jury instructions should not refer to an offense as a domestic violence offense unless this designation is relevant to the State's proof of the case. In State v. Hagler, 150 Wn.App. 196, 208 P.3d 32 (2009), the jury instructions referred to the charged offenses of assault and promoting prostitution as domestic violence offenses. Although finding harmless error in the circumstances of the case, the court warned that prejudice might result in some cases. State v. Hagler, 150 Wn.App at 202.

Accordingly, the pattern instruction above can be used to define “family or household member” when that term is used in an element of a crime, such as for second degree unlawful possession of a firearm (see WPIC 133.02.03), but the jury instructions should not unnecessarily designate a crime as a domestic violence offense.