WPIC 36.07 Harassment—Gross Misdemeanor—Elements

Use this instruction when the crime charged is non-felony harassment under RCW 9A.46.020 or when the jury is being instructed on non-felony harassment as a lesser included offense.

With this instruction, use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 2.24 (Threat—Definition). Also use, as applicable, WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition) and WPIC 2.13 (Malice—Maliciously—Definition).

Use WPIC 36.07.04 (Words or Conduct—Definition), if it will assist the jury in understanding the elements of this offense. If an instruction defining the phrase “without lawful authority” would be helpful to jurors, then see the Note on Use and Comment for WPIC 36.27 (Stalking—Without Lawful Authority—Definition).

Use bracketed material as applicable. In elements (1) and (2) to identify persons, see Comment below. In element (4), choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (1). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For any case in which substantial evidence supports only one of the alternatives in element (1), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.46.020.

This instruction has long differed from a prior version by omission of the phrase “mental health” from bracketed alternative (d) of element (1). In State v. Williams, 144 Wn.2d 197, 26 P.3d 890 (2001), the Washington Supreme Court struck down the portion of the harassment statute that attempted to make it a crime to threaten a person's mental health as being both overbroad and vague.

In the blank line in element (2) labeled “name” 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.

Structure of the instruction. A conviction for harassment is a gross misdemeanor unless one of the enhancing factors in RCW 9A.46.020(2)(b) is established. These factors include (1) a prior conviction of harassment against the named victim, a member of the victim's family or household, or a person “named in a no contact or no harassment order,” or (2) the harassment occurred by the defendant threatening to kill the victim or any other person.

Constitutional issues. In State v. Smith, 111 Wn.2d 1, 759 P.2d 372 (1988), the Washington Supreme Court held that the phrase “without lawful authority” is not unconstitutionally vague under the due process clauses of the Washington Constitution (Const. art. I, § 3) and the United States Constitution (U.S. Const. amend. 14, § 1). The court found that the meaning of “lawful authority” as used in RCW 9A.46.020 is “readily ascertainable from objective sources of law” and that the phrase does not allow “prosecution according to personal predilections.” State v. Smith, 111 Wn.2d at 11 (upholding a prior version of this statute).

Although the phrase “lawful authority” is not unconstitutionally vague on its face, the phrase may need to be defined for the jury in some instances. The court in State v. Smith, 111 Wn.2d 1, 10, 759 P.2d 372 (1988), stated that the court would not void a legislative enactment “merely because all of its possible applications cannot be specifically anticipated.” Practitioners can look to statutes, common law, and other “legal process” as possible sources for defining “lawful authority.” State v. Smith, 111 Wn.2d at 9.

A true threat is required. In State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013), the Washington Supreme Court held that, even though a ‘true threat’ is not an element of felony harassment, the State still must prove it. “This is because “true threat” defines and limits the scope of criminal statutes, such as felony harassment, that potentially encroach on protected speech.” State v. France, 180 Wn.2d 809, 869, 329 P.3d 864 (2014). The court in State v. Williams, 144 Wn.2d 197, 26 P.3d 890 (2001) held that only “true threats” may form the basis for a conviction under this statute. The Williams court adopted the following definition of “true threat”:

State v. Williams, 144 Wn.2d at 207–08 (quoting State v. Knowles, 91 Wn.App. 367, 373, 957 P.2d 797 (1998)). Accord State v. Trey M., 186 Wn.2d 884, 892–904, 383 P.3d 474 (2016) (extensive discussion); see also State v. Strong, 167 Wn.App. 206, 272 P.3d 281 (2012). See also State v. Schaler, 169 Wn.2d 274, 236 P.3d 858 (2010).

If a threat to kill is a “true threat” it is not protected by either the First Amendment or Article I, Section 5 of the Constitution. State v. Trey M., 186 Wn.2d 884, 383 P.3d 474 (2016); see also State v. J.M., 101 Wn.App. 716, 6 P.3d 607, affirmed on other grounds, 144 Wn.2d 472, 28 P.3d 720 (2001). Accord, State v. E.J.Y, 113 Wn.App. 940, 55 P.3d 673 (2002). A threat, even a threat to kill, that is uttered under circumstances that would not lead a reasonable person to believe that the threat was likely to be carried out is not a true threat. State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004).

The definition of “threat” contained in WPIC 2.24 (Threat—Definition) already incorporates the concepts of a true threat and must be used with WPIC 36.07. See Comment to WPIC 2.24 (Threat—Definition) for additional discussion of true threat. See State v. France, 180 Wn.2d 809, 329 P.3d 864 (2014) (complications arose from use of threat definition from a different chapter).

Elements of the offense. A conviction for harassment under RCW 9A.46.010(1) can be based on a single incident and does not require a showing of repeated invasions of a person's privacy or a pattern of harassment. State v. Alvarez, 128 Wn.2d 1, 904 P.2d 754 (1995).

In State v. J.M., 144 Wn.2d 472, 482, 28 P.3d 720 (2001), the court summarized the elements of the offense as follows:

Thus, in J.M., when the juvenile defendant told another student that he intended to kill the school principal and that student informed the principal of the threat, the defendant was guilty of harassment even though he had no reason to know that the threat would be communicated to the principal.

Reasonable fear is an element of the offense. State v. Alvarez, 128 Wn.2d 1, 904 P.2d 754 (1995). Evidence of the defendant's prior threats was properly admitted as relevant to the question of the reasonableness of the victim's belief that the defendant would kill her when he threatened to do so. “The State had to prove that it was reasonable for [the victim] to fear that [the defendant] would kill her.” State v. Binkin, 79 Wn.App. 284, 292, 902 P.2d 673 (1995), abrogated on other grounds, State v. Kilgore, 147 Wn.2d 288, 53 P.3d 974 (2002). In State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004), the court reversed a conviction for felony harassment because the threats to cause harm (specifically to bring a gun to school) were uttered in a joking fashion while the juvenile was giggling; the threat was not a true threat because a reasonable person would not have believed that the threat was serious. State v. Kilburn, 151 Wn.2d at 52–54.

There is, however, no requirement that the defendant actually have intended to carry out the threat. The subjective intent to carry out the threat is not an element of the offense. State v. Kilburn, 151 Wn.2d at 43–48.

Harassment as used in RCW 9A.46.020(1) is not the same as harassment under RCW Chapter 49.60, Washington Law Against Discrimination. Because the statutes have entirely different purposes, the definitions are not interchangeable. Payne v. Children's Home Soc. of Wash., Inc., 77 Wn.App. 507, 892 P.2d 1102 (1995).

Jurisdiction. The crime of harassment “may be deemed to have been committed where the conduct occurred or at the place from which the threat or threats were made or at a place where the threats were received.” RCW 9A.46.030.