WPIC 45.05 Mentally Incapacitated—Physically Helpless—Definition

Use, as applicable, with WPIC 41.02 (Rape—Second Degree—Elements) or WPIC 49.02 (Indecent Liberties—Elements). Use the term “intercourse” when the crime charged is second degree rape and the term “contact” when the crime charged is indecent liberties.

Use bracketed material as applicable. For directions on the various ways to use the bracketed phrases, see WPIC 4.20 (Introduction).

RCW 9A.44.010(4), (5).

State v. Ortega-Martinez, 124 Wn.2d 702, 711, 881 P.2d 231 (1994) (second degree rape case).

In addition to the victim's testimony regarding his or her understanding of the nature and consequences of sexual intercourse at the time of the incident, the jury may consider the clarity of the victim's testimony generally, the victim's IQ, mental age, ability to understand fundamental non-sexual concepts, and mental faculties. State v. Ortega-Martinez, 124 Wn.2d at 714. See also State v. Summers, 70 Wn.App. 424, 853 P.2d 953 (1993) (basic understanding of the mechanical act of sexual intercourse not to be equated with understanding of its nature and consequences). In State v. Bucknell, 144 Wn.App. 524, 183 P.3d 1078 (2008), the court concluded, under the particular facts of the case, that a victim with a debilitating disease, who was bedridden and unable to move from her chest down, was not “physically helpless” for purposes of second degree rape because she could understand, speak, and verbally communicate unwillingness. However, when the State can prove the victim was mentally incapacitated at the time of the act, “the victim's words or conduct indicating freely given agreement to have sexual intercourse will not excuse the defendant's conduct.” State v. Lozano, 189 Wn.App. 117, 125, 356 P.3d 219 (2015); see also Nelson v. Duvall, 197 Wn. App. 441, 387 P.3d 1158 (2017) (under Sexual Assault Protection Order (SAPO) Act).

For cases involving mental incapacity in the context of indecent liberties, practitioners should review the opinion in State v. VanVlack, 53 Wn.App. 86, 765 P.2d 349 (1988). In VanVlack, the court addressed the terms “mental incapacity” and “mental defect,” each of which is included in the indecent liberties statute (RCW 9A.44.100) as independent grounds for finding lack of consent. The VanVlack court held that, under some circumstances, a person may be incapable of consenting due to a mental defect (as distinct from mental incapacity) even if the person understands the nature and consequences of sexual contact. State v. VanVlack, 53 Wn.App. at 90–91.