WPIC 19.04 Rape of a Child—Defense

Use this instruction if the defendant is charged with rape of a child and the statutory defense is in issue that the defendant reasonably believed the victim to be older based upon declarations of age by the victim.

If the defendant is charged with rape of a child in the first degree, use WPIC 44.11 (Rape of a Child—First Degree—Elements) with this instruction. If the defendant is charged with rape of a child in the second degree, use WPIC 44.13 (Rape of a Child—Second Degree—Elements) with this instruction. If the defendant is charged with rape of a child in the third degree, use WPIC 44.15 (Rape of a Child—Third Degree—Elements) with this instruction.

Use bracketed material as applicable. The ages to be selected in the second paragraph of the instruction depend upon which degree of the crime the defendant is charged with. The applicable ages for each degree are set forth in the Comment below.

RCW 9A.44.030(2); RCW 9A.44.030(3)(a), (b), (c).

RCW 9A.44.030(2) provides in part that it is a defense in any prosecution under RCW Chapter 9A.44 that at the time of the offense, the defendant reasonably believed the alleged victim to be a specified age based upon declarations as to age by the alleged victim. For the charge of rape of a child in the first degree, the defendant must have reasonably believed the alleged victim was at least twelve, or was less than twenty-four months younger than the defendant. RCW 9A.44.030(3)(a). For the charge of rape of a child in the second degree, the defendant must have reasonably believed the alleged victim was at least fourteen, or was less than thirty-six months younger than the defendant. RCW 9A.44.030(3)(b). If the defendant is charged with rape of a child in the third degree, the defendant must have reasonably believed the alleged victim was at least sixteen, or less than forty-eight months younger than the defendant. RCW 9A.44.030(3)(c).

An instruction such as WPIC 19.04 is appropriate only when there is evidence that the victim made an explicit assertion about his or her age to the defendant. See, e.g., State v. O'Dell, 183 Wn.2d 680, 687-88, 358 P.3d 359 (2015) (instruction properly rejected when victim's statement did not mention any specific age). The defendant is not entitled to have the defense submitted to the jury simply because the victim's behavior, appearance, and general demeanor suggested that the victim was older than he or she actually was. State v. Bennett, 36 Wn.App. 176, 672 P.2d 772 (1983).

In State v. Dodd, 53 Wn.App. 178, 765 P.2d 1337 (1989), a 20-year-old defendant was charged with second degree statutory rape of a 13-year-old under former RCW 9A.44.080. However, there was evidence that the victim had represented that she was between 14 and 16 years of age. The defendant was subsequently convicted of third degree statutory rape. On appeal the court held that the defendant's mistake as to the victim's age was not a complete defense, if the defendant believed that the victim was less than 16 at the time the crime was committed.

RCW 9A.44.030(1) provides 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).

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).