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WPIC 36.03 Malicious Harassment—Threat of Harm to Person or Property—Elements

11 WAPRAC WPIC 36.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 36.03 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 36. Harassment, Hate Crimes, and Domestic Violence
WPIC 36.03 Malicious Harassment—Threat of Harm to Person or Property—Elements
To convict the defendant of the crime of malicious harassment, each of the following elements must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant threatened a specific person [or group of persons];
(2) That the defendant placed that person [or group of persons] in reasonable fear of harm to person or property;
(3) That the defendant acted because of the defendant's perception of the [person's] [persons'] [race] [color] [religion] [ancestry] [national origin] [gender] [sexual orientation] [or] [mental, physical, or sensory handicap];
(4) That the defendant acted maliciously and intentionally; and
(5) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction only for a charge of Malicious Harassment committed before July 28, 2019. See Comment below. Use bracketed material as applicable.
With this instruction, use WPIC 36.03.01 (Malicious Harassment—Reasonable Fear—Definition), WPIC 36.03.02 (Malicious Harassment—Threat of Harm—Limitations), WPIC 2.13 (Malice—Maliciously—Definition), WPIC 2.24 (Threat—Definition), and WPIC 10.01 (Intent—Intentionally—Definition). See also WPIC 36.05 (Malicious Harassment—Threat of Harm—Inference).
For a discussion of the phrase “this act” in element (5), 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.
COMMENT
RCW 9A.36.080(1)(c). 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 elements of Malicious Harassment under the former statute, and a Hate Crime offense are similar, but not identical. Caselaw cited in this Comment generally refers to the former crime of malicious harassment; applicable elements should be carefully compared.
For a discussion of the constitutionality of RCW 9A.36.080, see the Comment to WPIC 36.02 (Malicious Harassment—Physical Injury—Elements).
Only a true threat can be the basis for a criminal prosecution. State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006); see also State v. France, 180 Wn.2d 809, 329 P.3d 864 (2014), State v. Read, 163 Wn.App. 853, 261 P.3d 207 (2011). Further, on its face, this statute requires that the State prove that a reasonable person would have believed the defendant would have carried out the threat. See State v. Kilburn, 151 Wn.2d 36, 47, 84 P.3d 1215 (2004) (where a reasonable person would not have believed that the defendant intended to carry out his threat, the threat is not a “true threat” and cannot be the basis of a criminal conviction). A detailed discussion of constitutional requirement of “true threat” is found in the Comment to WPIC 2.24 (Threat—Definition).
As to “reasonable fear” as used in the instruction, see WPIC 36.03.01 (Malicious Harassment—Reasonable Fear—Definition). For a discussion of the statutory limitations on prosecutions for the use of words alone, see the Comment to WPIC 36.03.02 (Malicious Harassment—Threat of Harm—Limitations).
[Current as of April 2020.]
End of Document