WPIC 36.05 Malicious Harassment—Threat of Harm—Inference

The instruction should not be routinely used. For a discussion of the caution needed in using inferences and presumptions in criminal cases, see the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts).

Use this instruction only for a charge of Malicious Harassment committed before July 28, 2019. See Comment below.

Use the bracketed phrases indicating the nature of the conduct, and the individual or collective nature of the victim or victims, as appropriate.

RCW 9A.36.080(2). 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.

For a discussion of the issues involved in using inferences or presumptions in criminal cases, see the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts).

The wording of the instruction is based upon the statute. The instruction does not, however, contain wording based on the portion of the statute reading “unless evidence exists which explains to the trier of fact's satisfaction that the person did not intend to threaten the victim or victims.” A similar provision of an inference instruction based on a statute in a burglary prosecution has been held to create a mandatory presumption in violation of due process protections. State v. Deal, 128 Wn.2d 693, 911 P.2d 996 (1996) (addressing the phrase “unless the entering or remaining shall be explained by evidence satisfactory to the jury to have been made without the inferred fact of intent”). The instruction also differs from the statute by not using the term “victim.”