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WPIC 45.01 Sexual Intercourse—Definition

11 WAPRAC WPIC 45.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 45.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Washington State Supreme Court Committee on Jury Instructions
Part VII. Sex Crimes
WPIC CHAPTER 45. Sex Offenses—Definitions
WPIC 45.01 Sexual Intercourse—Definition
Sexual intercourse means
[that the sexual organ of the male entered and penetrated the sexual organ of the female and occurs upon any penetration, however slight] [or]
[any penetration of the vagina or anus however slight, by an object, [including a body part,] when committed on one person by another, whether such persons are of the same or opposite sex [except when such penetration is accomplished for medically recognized treatment or diagnostic purposes]] [or]
[any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex].
The instruction should be used whenever the court instructs on the offenses of rape, rape of a child, sexual misconduct with a minor in the first degree, or incest.
Use bracketed material as applicable. For directions on the various ways to use the bracketed phrases, see WPIC 4.20 (Introduction).
Do not use WPIC 45.07 (Sexual Contact—Definition) with the last bracketed phrase of this instruction when defining sexual intercourse in connection with an instruction related to rape.
RCW 9A.44.010(1).
The phrase “sexual contact” in the last paragraph comes from RCW 9A.44.010(1)(c), and it is specifically a part of the definition of sexual intercourse. In this context, the term “sexual contact” should not be further defined with the statutory definition found in RCW 9A.44.010(2). Incorporating the statutory definition of “sexual contact” into the instruction above would improperly add a specific intent requirement (“for purposes of sexual gratification”) to the crime of rape. Sexual gratification is not an element of the charge of rape, whether it is committed through sexual intercourse in the ordinary sense or through oral-genital or anal-genital contact. State v. Gurrola, 69 Wn.App. 152, 848 P.2d 199 (1993); State v. Brown, 78 Wn.App. 891, 899 P.2d 34 (1995).
The judge may instruct the jury that a finger is an object for purposes of defining sexual intercourse. State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999). See also State v. Cain, 28 Wn.App. 462, 624 P.2d 732 (1981).
In response to a jury question, the trial judge in State v. Weaville, 162 Wn.App. 801, 256 P.3d 426 (2011), defined “penetration” using a definition from the Sexual Assault Protection Order Act, RCW 7.90.010(5), that penetration is “any contact, however slight, between the sex organ of one person and the sex organ of another.” The Court of Appeals reversed, reverting to dictionary definitions of “penetrate” in the absence of a statutory definition. The court found that mere contact of sex organs is not enough to amount to sexual intercourse for purposes of rape; there must be some “entering or piercing.” See also State v. A.M., 163 Wn.App. 414, 260 P.3d 229 (2011) (penetration of the buttocks, but not the anus, does not constitute sexual intercourse).
[Current as of December 2019.]
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