WPIC 19.03 Rape (Second Degree) or Indecent Liberties (Victim Helpless or Incapacitated)—Defens...

Do not use this instruction if the only issue is forcible compulsion.

Use this instruction with WPIC 41.02 (Rape—Second Degree—Elements) or with WPIC 49.02 (Indecent Liberties—Elements), only if it is alleged under RCW 9A.44.050(1)(b) or RCW 9A.44.100(1)(b) that the victim was incapable of consent and the statutory defense is in issue that the defendant reasonably believed at the time of the offense that the victim was not mentally incapacitated or physically helpless.

Use bracketed material as applicable. See discussion of the term “mentally defective” in the Comment below.

Use this instruction with WPIC 45.05 (Mentally Incapacitated—Physically Helpless—Definition).

RCW 9A.44.030(1).

The statute provides that in “any prosecution under RCW Chapter 9A.44 in which consent is based solely upon the victim's mental incapacity or upon being physically helpless, it is a defense that the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless.”

Mentally defective. Even though the statutory defense in RCW 9A.44.030(1) does not include the term “mentally defective,” that term is included (in brackets) in the instruction above because of the term's potential applicability to the offense of indecent liberties. See RCW 9A.44.100(1)(b) (stating an alternative element of indecent liberties as involving a person who is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless). Additionally, the statutory definition of “mental incapacity” includes a mental defect. See RCW 9A.44.010(4).

Burden of proof. Allocating the burden of proving the “reasonable belief” defense to the defendant does not violate due process. The “reasonable belief” defense does not negate an element of the crime. State v. Loranzo, 189 Wn.App. 117, 356 P.3d 219 (2015).

The reasonable belief instruction does not shift the burden of disproving the victim's incapacity to the defendant. The instruction does not require the defendant to prove that the victim was not incapacitated—only that the defendant reasonably believed that the victim had capacity. State v. Powell, 150 Wn.App. 139, 206 P.3d 703 (2009); State v. Coristine, 161 Wn.App. 945, 252 P.3d 403 (2011), reversed on other grounds, 177 Wn.2d 370, 300 P.3d 400 (2013). See also In re Hubert, 138 Wn.App. 924, 158 P.3d 1282 (2007).

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).