WPIC 29.04 Homicide by Abuse—Elements

Use bracketed material as applicable.

If there is an issue of causal connection, use WPIC 25.02 (Homicide—Proximate Cause—Definition) with this instruction.

For a discussion of the phrase “any of these acts” in element (5), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.32.055.

The homicide by abuse statute, RCW 9A.32.055, withstood a challenge on the ground of unconstitutional vagueness in State v. Russell, 69 Wn.App. 237, 848 P.2d 743 (1993). In the process, the appellate court specified that “assault” as used in the statute is as defined in the common law, requiring unlawful force. The court noted that as the victim's parent, the defendant was permitted to intentionally touch or strike the victim, unless the force used to commit the battery was unreasonable or immoderate, under RCW 9A.16.100. The court found that it was “clear that assaults resulting in bruises, bleeding, broken bones, and hematomas are included in the statute.” State v. Russell, 69 Wn.App. at 247.

The court in Russell stated that “torture” was also commonly understood, citing State v. Brown, 60 Wn.App. 60, 66, 802 P.2d 803 (1990) (overruled on other grounds by State v. Grewe, 117 Wn.2d 211, 219–20, 813 P.2d 1238 (1991)). The Russell court also noted that in the case at hand the State did not need to prove torture when there was clear evidence of assault. In Brown, the trial court had defined torture as “the infliction of severe or intense pain as punishment or coercion, or for sheer cruelty.” State v. Brown, 60 Wn.App. at 65.

According to the Russell court, the common meaning of “pattern” is a “regular, mainly unvarying way of acting or doing [behavior patterns],” and “practice” is commonly understood to mean “a frequent or usual action; habit; usage.” State v. Russell, 69 Wn.App. at 247. In the case, four or five assaults over the eight to nine months that the defendant had access to the victim “clearly constitute a ‘pattern or practice.’” State v. Russell, 69 Wn.App. at 247.

Since the State is required to prove a series of assaultive (or torturous) acts, the entire course of conduct constitutes one violation of the act, and no unanimity instruction is required. State v. Russell, 69 Wn.App. at 249.

The definition of homicide by abuse uses a phrase also found in the first degree murder statute (“extreme indifference to human life”). Nevertheless, the phrase does not have the same meaning. State v. Edwards, 92 Wn.App. 156, 961 P.2d 969 (1998). For purposes of homicide by abuse, the phrase means not caring whether the victim lives or dies. State v. Madarash, 116 Wn.App. 500, 510–13, 66 P.3d 682 (2003).

The definition of homicide by abuse includes a reference to a “developmentally disabled person.” RCW 9A.32.055. The Legislature has expressed a general preference for the phrase “person with a developmental disability,” see RCW 44.04.280, but the Legislature has not yet amended RCW 9A.32.055 to incorporate this change. Until the statute is amended, practitioners may consider using the preferred term, but care should be taken to ensure that the jury instruction matches the charging language, absent an agreement by the parties to the contrary.

The homicide statutes do not define the term “developmentally disabled” or “developmental disability.” A legislative definition of “developmental disability” exists for offenses defined in RCW Chapter 9A.44, see RCW 9A.44.010 and WPIC 45.10 (Developmentally Disabled—Developmental Disability—Definitions); it is not clear, however, whether this definition can be extended to offenses such as homicide by abuse, which is defined in a separate chapter.