WPIC 19.04.03 Communication with a Minor For Immoral Purposes—Sexual Exploitation of a Minor—Co...

Use this instruction if the defendant is charged with one of the following offenses — communication with a minor for immoral purposes, sexual exploitation of a minor, commercial sexual abuse of a minor, or promoting commercial sexual abuse of a minor-and the statutory defense is in issue that the defendant made a reasonable bona fide attempt to ascertain the true age of the minor. Instructions for the underlying offenses are found in WPIC Chapters 47 (Indecent Exposure—Communication with a Minor for Immoral Purposes), 48 (Prostitution), and 49A (Sexual Depictions of Minors).

The instruction also applies to an offense for which pattern instructions have not been drafted-promoting travel for commercial sexual abuse of a minor. RCW 9.68A.110(3).

See the Comment for the effective dates for this statutory defense, which differ depending on the charged offense.

Use bracketed material as applicable.

RCW 9.68A.110(3).

The statutory list of offenses to which this defense applies has been expanded in recent years. Added to the list in 2010 was commercial sexual abuse of a minor. Laws of 2010, Chapter 289, § 17 (effective June 10, 2010). Added to the list in 2007 were promoting commercial sexual abuse of a minor and promoting travel for commercial sexual abuse of a minor. Laws of 2007, Chapter 368, § 3 (effective July 22, 2007).

An instruction such as WPIC 19.04.03 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).

The statute 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 unless the defense negates a essential element of the crime. State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014). See State v. McCullum, 98 Wn.2d 484, 492, 656 P.2d 1064, 1070 (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 specific intent element of attempted promotion of commercial sexual abuse of a minor requires only that the defendant believed the intended fictitious victim was a minor. State v. Johnson, 173 Wn.2d 895, 909, 270 P.3d 591(2012).

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).