WPIC 36.02 Malicious Harassment—Physical Injury—Elements

Use this instruction only for a charge of Malicious Harassment under RCW 9A.36.080(1)(a) committed before July 28, 2019. See Comment below.

Use bracketed material as applicable.

With this instruction, use WPIC 2.13 (Malice—Maliciously—Definition), WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definitions), and WPIC 10.01 (Intent—Intentionally—Definition).

In the blank line in element (3) labeled “name of victim,” identify the individual whose perceived characteristics are alleged to be the motive for the act, regardless of whether the defendant's acts were ultimately committed against that person. If the same person was physically injured, then use the same name in element (1); otherwise, use “another person” or the name of the other person.

For a discussion of the phrase “this act” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

The term “gender expression or identity,” and its definition, should be used only for cases that fall under the 2009 amendment to RCW 9A.36.080.

RCW 9A.36.080(1)(a). In 2019, the Legislature substantially altered RCW 9A.36.080, the former crime of Malicious Harassment, and created instead a new Hate Crime offense. (Laws of 2019, Chapter 271, § 2 (effective July 28, 2019)). Use this instruction only for the offense of Malicious Harassment occurring before July 28, 2019. For the Hate Crime offense, effective July 28, 2019, use WPICs 36.90, WPICs36.90, et seq, new for this edition.

The instruction is drafted following the statutory language. For discussion of the word “victim,” see the Comment to WPIC 36.01 (Malicious Harassment—Definition).

There is no requirement that the victim be “pre-selected.” As long as the victim was selected “because of” one of the prohibited bases, the encounter with the victim can be fortuitous or random or even initiated by the victim. State v. Johnson, 115 Wn.App. 890, 64 P.3d 88 (2003) (victim was female police officer who had arrested defendant on other charges and was transporting him to police station when malicious harassment occurred); State v. Lynch, 93 Wn.App. 716, 970 P.2d 769 (1999).

Constitutional challenges. RCW 9A.36.080 is an example of “hate crime” statutes, see RCW 9A.36.078, the constitutionality of which have been under consideration by state and federal courts. In 1992, the United States Supreme Court struck down as violating the First Amendment a St. Paul city ordinance that punished certain types of speech or symbolic expression that the speaker knew or should have known would provoke “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 380, 112 S. Ct. 2538, 120 L.Ed.2d 305 (1992). According to the majority opinion, the statute was an impermissible content-based regulation of speech. In 2017, the United States Supreme Court held that speech may not be banned solely on the ground that its expresses offensive ideas: there is no exception for hate speech. Matal v. Tam, 137 S.Ct. 1744, 1751, 198 L.Ed.2d 366 (2017); see State v. Arlene's Flowers, Inc., 193 Wn.2d 469, 441 P.3d 1203 (2019).

In 1993 however, a unanimous Court upheld a Wisconsin statute that provided enhanced penalties for crimes when the defendant had selected the victim or property affected “because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupier of that property.” Wisconsin v. Mitchell, 508 U.S. 476, 480 n.1, 113 S. Ct. 2194, 2195, 124 L.Ed.2d 436 (1993). The court found no First Amendment problem with the evidentiary use of speech to establish motive or intent. Wisconsin v. Mitchell, 508 U.S. at 489.

In State v. Talley, 122 Wn.2d 192, 858 P.2d 217 (1993), the Washington Supreme Court applied Mitchell to uphold the former version of RCW 9A.38.080(1), even though it struck down former section (2) (see the Comment to WPIC 36.05 (Malicious Harassment—Threat of Harm—Inference)). According to the court, “[u]nlike the St. Paul ordinance considered in R.A.V., RCW 9A.36.080(1) does not, on its face, regulate speech. Rather, the statute is aimed at criminal conduct and enhances punishment for that conduct where the defendant chooses his or her victim because of their perceived membership in a protected category.” State v. Talley, 122 Wn.2d at 201. Accord, State v. Johnson, 115 Wn.App. 890, 64 P.3d 88 (2003).

In State v. Pollard, 80 Wn.App. 60, 906 P 2d 976 (1995), the Court of Appeals upheld the statute against a due process challenge. The court concluded that the statutory words “because of” are not impermissibly vague, and in ordinary usage mean “by reason of” or “on account of.” The court concluded that in the typical case proof that the victim's membership in the protected group was a “substantial factor” motivating the defendant is not required and declined to read “substantial factor” into the statute. State v. Pollard, 80 Wn.App. at 70; see also State v. Haq, 166 Wn.App. 221, 281, 268 P.3d 997 (2012). The Pollard court noted in dicta, that in a case in which another alleged

State v. Pollard, 80 Wn.App. at 70.

Recognizing the implications of the First Amendment in a charge of Malicious Harassment, in a sufficiency of the evidence analysis, the court in Haq, referred to the defendant's conduct and words to demonstrate his malicious intent. State v. Haq, 166 Wn.App. at 280. The defendant argued that the assault was motivated primarily by his political beliefs, and only in a small part due to his hatred of individuals due to their Jewish faith. Citing Pollard, supra, the court in Haq concluded that Haq's own statements belied that argument. State v. Haq, 166 Wn.App. at 282.