WPIC 36.51 Violation of a Court Order (RCW 26.50.110)—Gross Misdemeanor—Elements
11 WAPRAC WPIC 36.51Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 36.51 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 36. Harassment, Hate Crimes, and Domestic Violence
WPIC 36.51 Violation of a Court Order (RCW 26.50.110)—Gross Misdemeanor—Elements
To convict the defendant of the crime of violation of a court order, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), there existed [a] [an] [protection order] [restraining order] [no-contact order] [stalking no-contact order] [order issued for the protection of a vulnerable adult] [order issued for the protection of a victim of sexual assault] [or] [foreign protection order] applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a [restraint provision of the order prohibiting acts or threats of violence against, or stalking of, a protected party] [or] [restraint provision of the order prohibiting contact with a protected party] [or] [provision of the order excluding the defendant from a [residence] [school] [workplace] [or] [daycare]] [or] [provision of the order prohibiting the defendant from knowingly coming within or remaining within a specified distance of a location] [or] [provision of the order prohibiting interference with the protected party's efforts to remove a pet owned, possessed, leased, kept, or held by the petitioner, respondent, or a minor child residing with either the petitioner or the respondent]; and
(4) That the defendant's act occurred in the [State of Washington] [County of ] [City of ].
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 in cases involving non-felony violations of court orders that are covered by RCW 26.50.110. Some orders are not covered by RCW 26.50.110.
Violation of an order is a Class C felony under certain circumstances. See the Comment below. The instruction above may be used in two situations: (1) when the only charge is gross misdemeanor violation of a protection order; or (2) when the defendant is charged with a felony violation and the jury is to be instructed on the gross misdemeanor charge as a lesser offense. Under situation (2), use WPIC 4.11 (Lesser Included Crime or Lesser Degree) with this instruction.
See the Comment for a discussion of statutory amendments in 2013.
Select the bracketed phrase that describes the type of order or orders that form the basis of the criminal prosecution.
If the evidence would support a conviction for violation of a single order by multiple means, the instruction should be modified to reflect a multiple means analysis. See WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).
Use WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction.
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).
COMMENT
RCW 26.50.110(1), as amended in 2013. RCW 26.50.110 has been amended with some frequency. Laws of 2013, Chapter 84, § 31 (effective July 28, 2013). The 2013 amendment added stalking no-contact orders issued pursuant to RCW Chapter 7.92 and harassment orders issued pursuant to RCW Chapter 9A.46 in the list of orders covered by RCW 26.50.110. Laws of 2013, Chapter 84, § 31 (effective July 28, 2013).
However, the Legislature did not amend RCW 9A.46.110 to provide that a violation of a harassment order is also a violation of RCW 26.50.110(1). If a defendant is charged under RCW 9A.46.080 for violating a criminal anti-harassment order, use WPIC 36.51.04 (Violation of a Court Order (RCW Chapter 9A.46 and 10.14)—Gross Misdemeanor—Elements) and not this instruction.
Practitioners should carefully review the statutes in place at the time the protective order was issued, as well as the statutes that apply as of the date of the offense.
An earlier version of this instruction was cited with approval in State v. Clowes, 104 Wn.App. 935, 944, 18 P.3d 596 (2001). The appellate court found a different “to convict” instruction was error because it did not contain all of the elements of the offense. Clowes, 104 Wn.App. at 944–45.
Qualifying orders and provisions. A conviction under RCW 26.50.110(1) may be based on a violation of a court order issued pursuant to: RCW Chapter 26.50 (domestic violence protection order); RCW Chapter 9.94A (no-contact order issued concurrently with a certificate of discharge under RCW 9.94A.637); RCW Chapter 10.99 (no-contact order); RCW Chapters 26.09, 26.10, and 26.26 (restraining order issued in conjunction with domestic relations action); RCW Chapter 74.34 (order issued for the protection of a vulnerable adult); RCW Chapter 7.90 (order for the protection of a sexual assault victim); RCW Chapter 9A.46 (harassment conviction order); RCW Chapter 7.92; or RCW 26.52.020 (foreign protection order). A court may issue an order for the protection of a victim even if criminal charges have not been filed. If there has not yet been a conviction, the word “victim” should be replaced with a more neutral term such as “complainant” or “protected party.”
RCW Chapter 26.50 permits a court issuing a domestic violence protection order to address a broad range of subjects. However, RCW 26.50.110(1) makes it a crime to violate only certain types of provisions, including:
- (i) The restraint provisions prohibiting acts or threats of violence against, or stalking of, a protected party, or restraint provisions prohibiting contact with a protected party;
- (ii) A provision excluding the person from a residence, workplace, school, or day care;
- (iii) A provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location;
- (iv) A provision prohibiting interfering with the protected party's efforts to remove a pet owned, possessed, leased, kept, or held by the petitioner, respondent, or a minor child residing with either the petitioner or the respondent; or
- (v) A provision of a foreign protection order or a Canadian domestic violence protection order specifically indicating that a violation will be a crime.
The “restraint provision” restriction does not apply for a felony prosecution pursuant to RCW 26.50.110(5). State v. Chapman, 140 Wn.2d 436, 998 P.2d 282 (2000). Therefore, misdemeanor violation of a court order is not a lesser-included crime of felony violation of a court order. State v. Chapman, 140 Wn.2d at 448–49. Because the violations are contained within the same statute, the WPI Committee believes it is a lesser degree crime. See State v. Tamalini, 134 Wn.2d 725, 731–32, 953 P.2d 450 (1998) (“A defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense ‘proscribe but one offense’; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.”) See discussion in Comment to WPIC 4.11 (Lesser Included Crime or Lesser Degree).
Foreign protection orders are discussed later in this Comment.
Related court orders not covered by RCW 26.50.110. Anti-harassment orders under RCW Chapter 10.14 and child abuse restraining orders under RCW Chapter 26.44 are not covered under RCW 26.50.110. For violations of anti-harassment orders, see WPIC 36.51.03 (Violation of Court Order (RCW Chapters 9A.46 and 10.14)—Gross Misdemeanor—Definition). Practitioners in cases involving violations of orders issued under RCW Chapters 9A.46, 10.14, and 26.44 will need to carefully consider the drafting of appropriate instructions.
Mental state. The statute requires that the defendant know of the order. RCW 26.50.110(1)(a). See State v. Clowes, 104 Wn.App. 935, 943–44, 18 P.3d 596 (2011), overruled on other grounds by State v. Nonog, 169 Wn.2d 220, 237 P.3d 250 (2010). However, proof of personal service is not required. City of Auburn v. Solis-Marcial, 119 Wn.App. 398, 79 P.3d 1174 (2003) (interpreting Auburn Municipal Code provision that substantially parallels the language of RCW 26.50.110(1)).
The court in State v. Sisemore, 114 Wn.App. 75, 55 P.3d 1178 (2002), held that the violation of the order must be committed “knowingly” and that an accidental violation would not support conviction.
Validity of court order. In State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005), the Supreme Court held that the validity of an order is not a question of fact for the jury but rather a question of law for the court when the court determines whether to admit the order as evidence of the crime.
Foreign protection orders. Foreign protection orders are enforceable in Washington under RCW 26.52.070. A “foreign protection order” does not include an order issued by any foreign authority. “Foreign protection order” is defined by the Washington statute as an order preventing harassment, violence, or threatening acts that is issued by a court of another state, the District of Columbia, a U.S. territory, any U.S. military tribunal, or by a tribal court located in the United States. RCW 26.52.010(3).
RCW 26.50.110(1) incorporates the provisions of RCW 26.52.070(1). Thus, violation of a provision in a valid foreign restraint provision that indicates violation is a crime can result in prosecution under RCW 26.50.110(1), even if violation of a similar provision in a Washington protection order would not form the basis for a criminal prosecution. Because prosecution under this provision is likely to be relatively rare, the WPI Committee did not address this alternative in the instructions.
Only foreign protection orders that are valid pursuant to RCW 26.52.020 can form the basis for criminal prosecution under RCW 26.50.110. The presumption of validity that is created in RCW 26.52.020 applies only to enforcement of orders by law enforcement agencies; the presumption does not apply to the State's duty to prove the element of validity in court.
Foreign protection orders need not satisfy all of Washington's statutory notice requirements in order to be enforceable here. For example, a tribal restraining order is enforceable even if it does not include notice provisions that would have been required by Washington statutes had the order been entered in a state court. See State v. Esquivel, 132 Wn.App. 316, 323, 132 P.3d 751 (2006). Due process under the full faith and credit clause requires merely that the issuing court had jurisdiction and provided the person under restraint with reasonable notice and opportunity to be heard. State v. Esquivel, 132 Wn.App. at 327–29.
Violation of multiple orders by one act. The defendant may be charged with violating multiple orders by the commission of one act of violation. In such a case, jury unanimity is required as to which order was violated. See State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). The WPI Committee recommends use of the following modified Petrich instruction:
[Current as of April 2020.]
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