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WPIC 19.04.01 Sexual Misconduct with a Minor—Defense

11 WAPRAC WPIC 19.04.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.04.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.04.01 Sexual Misconduct with a Minor—Defense
It is not a defense to the charge of sexual misconduct with a minor in the [first] [second] degree that at the time of the acts the defendant did not know the age of (name of person) or that the defendant believed [him] [her] to be older.
It is, however, a defense to the charge of sexual misconduct with a minor in the [first] [second] degree that at the time of the acts the defendant reasonably believed that (name of person) was at least eighteen years of age, or was less than sixty months younger than the defendant, based upon declarations as to age by (name of person).
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 if the defendant is charged with sexual misconduct with a minor 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 sexual misconduct with a minor in the first degree, use this instruction with either WPIC 44.31 (Sexual Misconduct with a Minor—First Degree—Sexual Intercourse with a Minor—Defendant in Significant Relationship to Minor—Elements) or WPIC 44.31.03 (Sexual Misconduct with a Minor—First Degree—Causing Sexual Intercourse Between Minors—Defendant in Significant Relationship to Minor—Elements).
If the defendant is charged with sexual misconduct with a minor in the second degree, use this instruction with either WPIC 44.33 (Sexual Misconduct with a Minor—Second Degree—Sexual Contact with a Minor—Defendant in Significant Relationship to Minor—Elements) or WPIC 44.33.01 (Sexual Misconduct with a Minor—Second Degree—Causing Sexual Contact Between Minors—Defendant in Significant Relationship to Minor—Elements).
The “name of person” is to be filled in with the name of the victim, and does not apply to a person “caused” to have the sexual contact with the victim.
Use bracketed material as applicable.
COMMENT
RCW 9A.44.030(2); RCW 9A.44.030(3)(d), (h).
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 sexual misconduct with a minor in the first or second degree, the defendant must have reasonably believed the alleged victim was at least eighteen, or was less than sixty months younger than the defendant. RCW 9A.44.030(3)(d), (h).
WPIC 19.04.01 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).
RCW 9A.44.030(2) 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).
In 1994, the Legislature amended the sexual misconduct with a minor statutes by adding the alternative means of knowingly causing another person under the age of 18 to have the prohibited sexual contact. RCW 9A.44.030 does not create a “reasonable belief” defense regarding the age of a person caused to have sexual contact with a child of less than the prohibited age, and therefore the wording of this instruction has not been changed.
[Current as of February 2019.]
End of Document