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WPIC 41.02 Rape—Second Degree—Elements

11 WAPRAC WPIC 41.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 41.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VII. Sex Crimes
WPIC CHAPTER 41. Rape—Second Degree
WPIC 41.02 Rape—Second Degree—Elements
To convict the defendant of the crime of rape in the second degree, each of the following three elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant engaged in sexual intercourse with (name of person);
(2) That the sexual intercourse occurred
[(a)] [by forcible compulsion] [or]
[(b)] [when (name of person) was incapable of consent by reason of being [physically helpless] [or] [mentally incapacitated]] [or]
[(c)] [when (name of person) had a developmental disability, and the defendant was not married to this person and had supervisory authority over [him] [her]] [or]
[(d)] [when (name of person) had a developmental disability, and the defendant was not married to this person and was providing transportation, within the course of his or her employment, to this person at the time of the offense] [or]
[(e)] [when the defendant was a health care provider and (name of person) was a [client] [patient], and the sexual intercourse occurred during a [treatment session] [consultation] [interview] [or] [examination]] [or]
[(f)] [when (name of person) was a resident of a facility for persons with a [mental disorder] [chemical dependency], and the defendant was not married to this person and had supervisory authority over [him] [her]] [or]
[(g)] [when (name of person) was a frail elder or vulnerable adult, and the defendant was not married to (name of person) and had a significant relationship with [him] [her]] [or]
[(h)] [when (name of person) was a frail elder or vulnerable adult, and the defendant was not married to (name of person) and was providing transportation, within the course of the defendant's employment, to (name of person) at the time of the offense]; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that elements (1) and (3), and any of the alternative elements [(2)(a),] [(2)(b),] [(2)(c),] [(2)(d),] [(2)(e),] [(2)(f),] [(2)(g),] or [(2)(h)] have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives [(2)(a),] [(2)(b),] [(2)(c),] [(2)(d),] [(2)(e),] [(2)(f),] [(2)(g),] or [(2)(h)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of elements (1), (2), or (3), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (2). For directions on how to use this instruction, see 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 the related jury interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (2), then revise the instruction to follow the format set forth in WPIC 4.21 (Elements of the Crime—Form).
Use WPIC 45.01 (Sexual Intercourse—Definition) with this instruction. Also use, as applicable, WPIC 45.03 (Forcible Compulsion—Definition), WPIC 45.04 (Consent—Definition), WPIC 45.05 (Mentally Incapacitated—Physically Helpless—Definition), WPIC 45.06 (Married—Definition), WPIC 45.08 (Significant Relationship—Definition), WPIC 45.10 (Developmentally Disabled—Developmental Disability—Definition), WPIC 45.11 (Person with Supervisory Authority—Definition), WPIC 45.12 (Health Care Provider—Definition), WPIC 45.13 (Treatment—Definition), WPIC 45.14 (Frail Elder or Vulnerable Adult—Definition, WPIC 45.15 (Facility for Persons with a Mental Disorder—Definition), or WPIC 45.16 (Facility for Chemically Dependent Persons—Definition).
If the statutory defense to rape in the second degree is in issue, use WPIC 19.03 (Rape (Second Degree) or Indecent Liberties (Victim Helpless or Incapacitated)—Defense), or WPIC 19.03.02 (Rape (Second Degree) or Indecent Liberties (Health Care Provider)—Defense), with this instruction.
For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.44.050.
Consent. Although consent negates the element of forcible compulsion, no separate instruction on consent is needed. State v. W.R., Jr., 181 Wn.2d 757, 767, n.3, 336 P.3d 1134 (2014). Consent is not a defense if the State proves beyond a reasonable doubt the victim was incapable of consent. State v. Lozano, 189 Wn.App. 117, 356 P.3d 219 (2015).
Defense. RCW 9A.44.030(1) creates a defense to a charge of rape in the second degree if the defendant reasonably believed that the victim was not mentally incapacitated or physically helpless at the time of the incident. For a detailed discussion of the defense and burden of proof issues relating to it, see the Comment to WPIC 19.03 (Rape (Second Degree) or Indecent Liberties (Victim Helpless or Incapacitated)—Defense).
Lesser included offenses. It is error to give second degree rape as a lesser included offense instruction if there is no “affirmative evidence” that the defendant committed only second degree rape. State v. Brown, 127 Wn.2d 749, 755, 903 P.2d 459 (1995) (no affirmative evidence of forcible compulsion without deadly weapon, where victim testified gun was used in late stages of rape and defendant claimed consensual sex for money). However, in State v. Parks, 190 Wn.App. 859, 363 P.3d 599 (2015), the court affirmed a conviction of the lesser included crime of rape in the second degree where there was evidence of forcible compulsion (bruising) in addition to the use of a deadly weapon that formed the basis of the rape in the first degree.
Third degree rape cannot be a lesser included offense of second degree rape because third degree rape requires that the victim clearly express a lack of consent by words or conduct which is not a necessary element of second degree rape. It is, however, a lesser degree offense. State v. Ieremia, 78 Wn.App. 746, 899 P.2d 16 (1995) (third degree rape instruction nevertheless properly refused for lack of evidence).
Alternative means. Rape in the second degree is an alternative means offense. See State v. Ortega-Martinez, 124 Wn.2d 702, 881 P.2d 231 (1994). For a discussion of the issues involved in instructing jurors on alternative means offenses, see the Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).
Forcible compulsion. See the discussion of “forcible compulsion” in the Comment to WPIC 45.03 (Forcible Compulsion—Definition). A “finding of forcible compulsion cannot be based solely on the victim's subjective reaction to particular conduct. There also must be a ‘threat’—a communication of an intention to cause bodily injury.” State v. Weisberg, 65 Wn.App. 721, 725, 829 P.2d 252 (1992) (second degree rape conviction reversed). However, physical resistance by the victim is not required. State v. McKnight, 54 Wn.App. 521, 774 P.2d 532 (1989). Once a defendant asserts a consent defense to a charge based on forcible compulsion, the State must prove lack of consent as part of the proof of forcible compulsion. State v. W.R. Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014).
Intent. Second degree rape does not include the element of intent, either express or implied, even if the act of sexual intercourse is completed by means of “sexual contact” between persons involving the sex organs of one person and the mouth or anus of another person. State v. Brown, 78 Wn.App. 891, 899 P.2d 34 (1995). See State v. Gurrola, 69 Wn.App. 152, 848 P.2d 199 (1993) (similar result, first degree rape of a child). See also State v. Walden, 67 Wn.App. 891, 895, 841 P.2d 81 (1992) (“[O]ne can be convicted of rape without proof of the existence of any mental state.”).
Marriage. The word “marriage” and related terms in RCW Chapter 9A.44 apply equally to registered domestic partnerships. RCW 9A.44.904.
[Current as of December 2019.]
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