WPIC 39.41 Luring—Elements

Use WPIC 10.01 (Intent—Intentionally—Definition) with this instruction.

If the offense involves a person with a developmental disability, use WPIC 45.10 (Developmentally Disabled—Developmental Disability—Definitions) with this instruction. See the discussion in the Comment.

In element (4), use “parent or guardian” if the offense involves a minor. If the offense involves an adult with a developmental disability, use only “guardian.” For directions on the various ways to use the bracketed phrases, 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).

In element (1), the bracketed alternatives related to various transportation terminals apply only to crimes committed on or after January 1, 2013.

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).

The Legislature amended the luring statute, effective for crimes occurring on or after June 9, 2016, to include an intent element. Prior to this amendment, the statute omitted the intent element, and there was a split of authority in the Court of Appeals regarding whether an implied intent element was needed to prevent the statute from being facially overbroad. See State v. Homan, 191 Wn.App. 759, 777, 364 P.3d 839 (2015); State v. Dana, 84 Wn.App. 166, 926 P.2d 344 (1996). Because this instruction includes the intent element, it should be sufficient whether the alleged crime occurred before or after the amendment.

“[T]he use of the word ‘lure’ in this statute is intended to prohibit a defined class of persons (one unknown to the minor or developmentally disabled person and without the consent of the minor's parents or the disabled person's guardian) from enticing or attempting to entice a protected person into a specific place (here, a car).” State v. Dana, 84 Wn.App. at 172. In addition, the statute's location in RCW Chapter 9A.40 (Kidnapping, Unlawful Imprisonment, and Custodial Interference) clarifies that, like the second degree attempted kidnapping statute, “the luring statute targets conduct that falls short of the force necessary to constitute abduction.” State v. Dana, 84 Wn.App. at 173.

Luring means an invitation accompanied by an enticement through words or conduct. The victim need not find the enticement attractive. State v. Dana, 84 Wn.App. at 176. However, there need not be both words and conduct; luring may be committed by words alone. Even though phrased as a question and an assertion of fact, “[d]o you want some candy? I've got some at my house,” was an implied invitation and enticement when spoken by a defendant to a 9-year-old boy who was a stranger to him. State v. Homan, 181 Wn.2d 102, 108, 330 P.3d 182 (2014). Whether a defendant is “unknown” to the child does not require a lack of any previous interaction. The “ice cream man” that the child victim had two prior limited interactions with in State v. Castillo-Murcia, 188 Wn.App. 539, 354 P.3d 932 (2015), was sufficiently “unknown” to the child to support conviction.

The statute's prohibition of luring “into an area” does not require an invitation into an enclosed structure, only an invitation to or into a place inaccessible to the public. State v. Homan, 181 Wn.2d at 109. The court in Dana also noted that the statute specifically criminalizes attempts to lure.

As noted above, the offense of luring is similar to that of second degree attempted kidnapping. In the kidnapping context, the crime is defined, in part, with reference to a victim who is an incompetent person. In that context, the term “incompetent person” requires proof that a formal guardianship (or some other similar legal protection) has been established and is not satisfied merely by proof that the person restrained is under some mental disability. State v. Simms, 95 Wn.App. 910, 977 P.2d 647 (1999). The luring statute, by comparison, requires a showing of a developmental disability rather than incompetency.

The statute defining luring does not define the term “developmentally disabled” or “developmental disability.” A legislative definition of a person with a developmental disability exists for offenses defined in RCW Chapter 9A.44. See RCW 9A.44.010 and WPIC 45.10 (Developmentally Disabled—Developmental Disability—Definitions). It is not clear, however, whether this definition can be extended to offenses such as luring, which is defined in a separate chapter.