WPIC 19.03.02 Rape (Second Degree) or Indecent Liberties (Health Care Provider)—Defense
11 WAPRAC WPIC 19.03.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.03.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.03.02 Rape (Second Degree) or Indecent Liberties (Health Care Provider)—Defense
It is a defense to the charge of [rape in the second degree] [indecent liberties] that the [client] [patient] consented to the sexual [intercourse] [contact] with the knowledge that the sexual [intercourse] [contact] was not for the purpose of treatment.
For purposes of this defense, consent means that at the time of the act of sexual [intercourse] [contact] there were actual words or conduct indicating freely given agreement to have sexual [intercourse] [contact].
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use this instruction with WPIC 41.02 (Rape—Second Degree—Elements) or WPIC 49.02 (Indecent Liberties—Elements), if the defendant raises the statutory defense set forth for second degree rape by a health care provider, or indecent liberties by a health care provider, respectively.
Use the term “sexual intercourse” with a second degree rape defense, and the term “sexual contact” with an indecent liberties charge.
COMMENT
The statutory defense for second degree rape by a health care provider is set forth in RCW 9A.44.050(1)(d). The statutory defense for indecent liberties by a health care provider is set forth in RCW 9A.44.100(1)(d).
RCW 9A.44.050(1)(d) and RCW 9A.44.100(1)(d) provide that this defense must be proved by the defendant by a preponderance of the evidence. It is now settled that the Legislature may place the burden of proving a statutory defense on the defendant. State v. McCullum, 98 Wn.2d 484, 492, 656 P.2d 1064 (1983); State v. Acosta, 101 Wn.2d 612, 615–16, 683 P.2d 1069 (1984). For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).
The definition of consent is based upon RCW 9A.44.010(7).
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 February 2019.]
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