WPIC 38.04 Criminal Mistreatment—Second Degree—Elements

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).

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 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).

With this instruction, use as applicable WPIC 2.03.01 (Substantial Bodily Harm—Definition), 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 38.19 (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).

RCW 9A.42.030. The statute was amended in 2017 to lower the mental state from “recklessly” to “with criminal negligence.”

Mens Rea. The mens rea was reduced from “recklessly” to “with criminal negligence” by Laws of 2017, Chapter 266, § 3 (effective July 23, 2017). Criminal negligence 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).

Great bodily harm. As pointed out in the Comment to WPIC 38.02 (Criminal Mistreatment—First Degree—Elements), the Legislature has adopted two separate statutory definitions of “great bodily harm.” The statutory definition that applies specifically to criminal mistreatment cases is that found in RCW 9A.42.010, and the corresponding pattern instruction using that definition is set forth in WPIC 38.19 (Criminal Mistreatment and Related Offenses—Great Bodily Harm—Definition). Practitioners in criminal mistreatment cases should be careful to define “great bodily harm” using WPIC 38.19 rather than the more generally applicable WPIC 2.04 (Great Bodily Harm—Definition).

Substantial bodily harm. Similar statutory confusion does not exist with regard to the term “substantial bodily harm.” That term is identically defined in both RCW 9A.04.110 and RCW 9A.42.010. Accordingly, practitioners in criminal mistreatment cases should define “substantial bodily harm” using the generally applicable WPIC 2.03.01 (Substantial Bodily Harm—Definition).

Case law. The term “by withholding the basic necessities of life” applies to both subsections (a) and (b) of second degree criminal mistreatment. State v. McGary, 122 Wn.App. 308, 93 P.3d 941 (2004), and by statutory amendment in 2017.

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).