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WPIC 44.00 Introduction—Sex Offenses Against Children

11 WAPRAC WPIC 44.00Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 44.00 (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 44. Rape of a Child—Child Molestation—Sexual Misconduct with a Minor
WPIC 44.00 Introduction—Sex Offenses Against Children
Sex offenses against children often involve multiple acts. This can include several discrete incidents or several acts of touching within the same incident. Charging practices for cases involving multiple acts varies. Sometimes each act is a separate count. Sometimes multiple incidents are charged in single count. Yet on other occasions multiple counts each involving multiple incidents are charged.
The “multiple acts” issue also arises in many crimes other than child sex offenses. WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) and WPIC 4.26 (Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act) and the comments therein deal with all crimes. But the issue is so prevalent in child sex abuse cases it is worthy of comment here.
State v. Carson, 184 Wn.2d 207, 357 P.3d 1064 (2015), reflects the ongoing and variable nature of the charging issue in sexual abuse cases. Carson traces the history of the unanimity debate to State v. Petrich, citing what has come to be known as the Petrich Instruction:
When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected …. The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured.
State v. Carson, 184 Wn.2d at 217.
But as Carson illustrates, the trial courts continue to grapple with the issue. In Carson, the prosecutor offered the standard Petrich instruction based on WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) that the jury “need not unanimously agree that the defendant committed all the acts of child molestation in the first degree.” However, the defendant was charged with three counts. Defense counsel objected to the proposed instruction noting its inapplicability where multiple counts were charged. Carson's defense attorney argued the inclusion of the Petrich instruction was confusing in that it may lead the jury to believe if they agreed one act happened, they agreed all happened. The Petrich instruction was not given.
On the appeal, the court rejected the argument defense counsel was ineffective for objecting to the instruction. The majority held that it was a legitimate trial tactic to believe the Petrich instruction would undercut the defendant's factual defense that none of the incidents happened. The court was divided on other issues such as whether a Petrich instruction, WPIC 4.25, should ever be given when multiple counts were filed. This remains an area where caution must be exercised on how WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) and WPIC 4.26 (Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act) should be applied.
In previous editions, this volume included instructions on statutory rape. Because these statutes were repealed in 1988 and replaced with statutes on rape of a child, the WPI Committee has withdrawn the statutory rape instructions. If any statutory rape cases are still going to trial, practitioners will need to consult previous editions of this volume for the applicable instructions.
[Current as of December 2019.]
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