WPIC 42.02 Rape—Third Degree—Elements

The instruction is drafted for cases in which the jury needs to be instructed using both of the alternatives for element (2). Use bracketed language “and such lack of consent was clearly expressed by words or conduct” only for crimes committed before July 28, 2019. Use other bracketed material as applicable. 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) and WPIC 45.04 (Consent—Definition), as applicable, with this instruction.

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.44.060. Effective July 28, 2019, the Legislature removed the language that a lack of consent must be “clearly expressed” by words or conduct. Laws of 2019, Chapter 87, § 3. Practitioners should take care that the bracketed language, “and such lack of consent was clearly expressed by the other person's words or conduct,” is only used for crimes committed before July 28, 2019.

RCW 9A.44.060(1)(b) states in part that a person is guilty of rape in the third degree when the person engages in sexual intercourse with another person “where there is a threat of substantial unlawful harm to property rights of the victim.” The WPI Committee has modified the statutory language to clarify that the victim engaged in sexual intercourse because of a threat of substantial unlawful harm to his or her property rights.

The court in State v. Elmore, 54 Wn.App. 54, 771 P.2d 1192 (1989), rejected the argument that “intent” and “knowledge” are elements of third degree rape and held that the trial court did not err in failing to instruct the jury on “intent” and “knowledge” in a prosecution for third degree rape.

The evidence did not support the giving of a third degree rape instruction where the victim testified to rape by forcible compulsion (second degree) and the defendant testified to consensual sexual intercourse. State v. Charles, 126 Wn.2d 353, 894 P.2d 558 (1995).

Although it is not a lesser included offense to second degree rape, third degree rape is a lesser degree offense to second degree rape. State v. Ieremia, 78 Wn.App. 746, 899 P.2d 16 (1995) (third degree rape instruction nevertheless properly refused for lack of evidence that intercourse was nonconsensual but unforced).