WPIC 43.02 Voyeurism—First Degree—Elements
11 WAPRAC WPIC 43.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 43.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VII. Sex Crimes
WPIC CHAPTER 43. Voyeurism
WPIC 43.02 Voyeurism—First Degree—Elements
To convict the defendant of the crime of voyeurism in the first degree, each of the following five elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant knowingly [viewed] [or] [photographed] [or] [filmed] [a second person] [or] [the intimate areas of a second person];
(2) That the [viewing] [or] [photographing] [or] [filming] was for the purpose of arousing or gratifying the sexual desire of any person;
(3) That the [viewing] [or] [photographing] [or] [filming] was without the second person's knowledge and consent;
(4) [(a)] [That the second person was [viewed] [or] [photographed] [or] [filmed] in a place where he or she would have a reasonable expectation of privacy] [or]
[(b)] [That the intimate areas of the second person were [viewed] [or] [photographed] [or] [filmed] under circumstances where he or she had a reasonable expectation of privacy, [whether in a public or private place]]; and
(5) That any of these acts occurred in the State of Washington.
If you find from the evidence that elements (1), (2), (3), and (5), and either of the alternative elements (4)(a) or (4)(b), 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 (4)(a) or (4)(b) 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), (3), (4), or (5), 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 both of the alternatives for element (4). 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 (4), then revise the instruction to follow the format set forth in WPIC 4.21 (Elements of the Crime—Form).
Use the bracketed phrase “[whether in a public or private place]” if it will assist the jurors.
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).
COMMENT
RCW 9A.44.115(2).
This instruction has been revised for this edition to address only voyeurism in the first degree.
The prosecution must prove that the purpose of the act was for sexual arousal or gratification, not that it actually aroused or gratified the defendant. State v. Diaz-Flores, 148 Wn.App. 911, 201 P.3d 1073 (2009).
A unit of prosecution under the voyeurism statute is each victim whose privacy is invaded. State v. Diaz-Flores, 148 Wn.App. 911, 201 P.3d 1073 (2009).
The statute does not apply to viewing, photographing or filming by personnel at correctional facilities for security purposes or during investigation of misconduct by a prisoner or inmate. RCW 9A.44.115(4).
The Legislature amended the statute in 2003 to prohibit photographing or filming of a person's intimate areas without knowledge or consent, whether in a public or private place, thus prohibiting “upskirt photography.” This amendment abrogated State v. Glas, 147 Wn.2d 410, 54 P.3d 147 (2002).
[Current as of December 2019.]
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