WPIC 38.22 Dependent Person—Definition

Use this instruction when defining “dependent person” for purposes of the abandonment instructions contained in this WPIC Chapter 38 (Criminal Mistreatment).

The second paragraph may be used depending on a careful analysis of the facts involved in the particular case. The WPI Committee does not recommend that the second paragraph be routinely used. See the Comment below.

The statute. RCW 9A.42.010(4) defines “dependent person” as follows:

Mandatory presumption versus permissible inference. The WPI Committee views the second sentence of RCW 9A.42.010(4) as creating a mandatory presumption. Mandatory presumptions violate a defendant's due process rights if they relieve the State of its obligation to prove all elements of the crime charged beyond a reasonable doubt.

On the other hand, a permissive inference allows, but does not require, the jury to reach a particular conclusion if particular basic facts are proved. Permissive inferences may be used more readily than mandatory presumptions. This determination requires a case-by-case analysis of the particular evidence presented to the jury. See generally the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Acts). For a related discussion of permissive inferences and mandatory presumptions, see also Fine, 13B Washington Practice, Criminal Law and Sentencing § 31:23 (3d ed.).

Instruction's bracketed second paragraph. In light of the foregoing analysis, in 2005 the WPI Committee redrafted the presumption contained in RCW 9A.42.010(4) as a permissive inference and included it, in brackets, as the instruction's second paragraph. Before using this paragraph, however, practitioners should carefully review the facts of their case to determine whether the inference is supported by other evidence and whether the presumed fact flows more likely than not from proof of the underlying fact. There are serious issues raised by the use of this inference. For example, the finding that a person is a vulnerable adult under RCW 74.34.020 is made based on a preponderance of the evidence. Thus, the relevance of such a finding in a criminal trial is uncertain, given the higher burden of proof. The primary purpose of the WPI Committee in including the second paragraph was to alert readers that, in those relatively few cases in which use of the statutory “presumption” would be useful to the trier of fact, the instruction must be phrased in terms of a permissive inference and not a mandatory presumption.

Further definitional language may be needed if the second paragraph is used. See, e.g., RCW 18.51.010 (defining “nursing home”); RCW 70.128.010 (defining “adult family home”); and RCW 74.34.020 (defining “vulnerable adult”).

Dependent person—child. The Washington Supreme Court held that a child qualifies as a dependent person, rejecting an 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 437, 444, 237 P.3d 282 (2010) (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”).