WPIC 38.02 Criminal Mistreatment—First Degree—Elements

Use “recklessly” for crimes committed prior to July 23, 2017. Use “with criminal negligence” for crimes committed on or after July 23, 2017. Use other bracketed material as applicable. For directions on the various ways to use the bracketed phrases relating to how the crime is committed, see WPIC 4.20 (Introduction).

With this instruction, use as applicable WPIC 10.03 (Recklessness—Definition), WPIC 10.04 (Criminal Negligence—Definition), WPIC 38.20 (Basic Necessities of Life—Definition), WPIC 38.21 (Child—Definition), WPIC 38.22 (Dependent Person—Definition), and WPIC 38.23 (Employed—Definition). When defining “great bodily harm,” use WPIC 38.25 (Criminal Mistreatment and Related Offenses—Great Bodily Harm—Definition) rather than the slightly different definition found in WPIC 2.04 (Great Bodily Harm—Definition) (see discussion in the Comment below).

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

RCW 9A.42.020. The mens rea was reduced from “recklessly” to “with criminal mistreatment” by Laws of 2017, Chapter 266, § 2 (effective July 23, 2017). Criminal mistreatment applies to all offenses committed on or after July 23, 2017. If the crime is alleged to have been committed both before and after July 23, 2017, the defendant may be convicted of Criminal Mistreatment in the First Degree based on negligent conduct only if the jury finds, by special verdict, that the crime was committed in part after July 23, 2017. Otherwise the defendant can only be sentenced for Criminal Mistreatment in the Third Degree. See WPIC 4.20 (Introduction).

No legal designation, such as power of attorney, is required to establish physical custody. The Legislature intended physical custody as used in RCW 9A.42.020 to mirror the definition of physical custody in RCW 26.27.021(14) (physical care and supervision) whether or not the victim is a child. State v. Koch, 157 Wn.App. 20, 30, 237 P.3d 287 (2010).

If it is an issue in the case, the term “parent” may need to be defined. RCW 9A.42.010(6).

An “assault defense instruction” may be appropriate to inform a jury that unwanted contact, even when done to provide the necessities of life, may constitute assault. State v. Koch, 157 Wn.App. at 33–36.

The term “great bodily harm” has two separate definitions under Washington's statutes. A definition that applies generally to Washington's criminal code is found at RCW 9A.04.110, and the corresponding pattern instruction is found at WPIC 2.04 (Great Bodily Harm—Definition). A slightly different definition is set forth in RCW 9A.42.010, which applies expressly to criminal mistreatment and other offenses covered by RCW Chapter 9A.42. The WPI Committee has drafted a separate pattern instruction to address the definition of “great bodily harm” for these cases under RCW Chapter 9A.42. See WPIC 38.25 (Criminal Mistreatment and Related Offenses—Great Bodily Harm—Definition). Accordingly, practitioners should be careful to use WPIC 38.25, rather than WPIC 2.04, when defining “great bodily harm” in a criminal mistreatment case.

Post-traumatic stress syndrome does not constitute “great bodily harm” or “substantial bodily harm” under the criminal mistreatment statute. State v. Van Woerden, 93 Wn.App. 110, 967 P.2d 14 (1998).

Reviewing a matter tried under RCW 9A.42.020 to the court without a jury, the Supreme Court held that when the Legislature did not define the word “disability,” which determines if a child is dependent, the trial court could rely upon the dictionary. Holding that “disability” means the “inability to do something” or “deprivation or lack especially of physical, intellectual, or emotional capacity or fitness” or a “physical or mental illness, injury, or condition that incapacitates in any way,” the court went on to evaluate the sufficiency of the evidence. State v. Mitchell, 169 Wn.2d 437, 444, 237 P.3d 282 (2010). The court further held that a child qualifies as a dependent person, rejecting the argument that the Legislature intended the definitions of “child” and “dependent person” in RCW 9A.42.010 to be mutually exclusive. State v. Mitchell, 169 Wn.2d at 444–47 (defendant was charged with first degree criminal mistreatment as “a person who has assumed the responsibility to provide to a dependent person the basic necessities of life”).