WPIC 45.07 Sexual Contact—Definition

This instruction should be used whenever the court instructs on the offenses of child molestation, sexual misconduct with a minor in the second degree, or indecent liberties. See WPIC Chapters 44 (Rape of a Child—Child Molestation—Sexual Misconduct with a Minor) and 49 (Indecent Liberties).

Do not use this instruction in a rape case in connection with the definition of sexual intercourse committed by means of “sexual contact” between the sexual organs of one party and the mouth or anus of another party.

RCW 9A.44.010(2).

The statute sets forth a general definition of “sexual contact” for purposes of defining the element of sexual contact for the offenses of child molestation, sexual misconduct with a minor in the second degree, and indecent liberties. A definition of “sexual contact” is also set forth in RCW 9A.44.010(1)(c). This latter definition is specifically part of the definition of sexual intercourse. See WPIC 45.01 (Sexual Intercourse—Definition) and its accompanying Comment.

In In re Adams, 24 Wn.App. 517, 601 P.2d 995 (1979), the court addressed what parts of the body are “sexual or other intimate parts.” If a contact is directly to the genital organs or breasts, the question is resolved as a matter of law. The determination of which anatomical areas apart from genitalia and breasts are intimate is a question to be resolved by the trier of fact. In Adams, the touching of the hips was held to be sexual contact when other activity indicated that it was being done for the sexual gratification of the actor. See also State v. Harstad, 153 Wn.App. 10, 218 P.3d 624 (2009). In cases in which the evidence shows equivocal touching through clothing, or touching of intimate parts of the body other than the primary erogenous areas, courts have required some other evidence of sexual gratification. See State v. Powell, 62 Wn.App. 914, 816 P.2d 86 (1991) (defendant's conviction for first degree child molestation reversed because all touching occurred through the victim's clothing, all touching was fleeting, and the evidence of the defendant's purpose in the touchings was equivocal). However, an additional jury instruction on this point is not required; the definition of “sexual conduct” is sufficient. State v. Veliz, 76 Wn.App. 775, 888 P.2d 189 (1995).

Even though the statutory definition of “sexual intercourse” applicable to rape cases includes, at RCW 9A.44.010(1)(c), “any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another person …” (emphasis added), the statutory definition of sexual contact reflected in this instruction is not applicable to rape crimes because a rape does not require the contact to be for purposes of sexual gratification. State v. Brown, 78 Wn.App. 891, 899 P.2d 34 (1995); State v. Gurrola, 69 Wn.App. 152, 848 P.2d 199 (1993). See the Comment to WPIC 45.01 (Sexual Intercourse—Definition). The definition continues to be applicable to crimes of first, second, and third degree child molestation, second degree sexual misconduct with a minor, and indecent liberties, all of which explicitly use the term “sexual contact.” State v. Brown, 78 Wn.App. at 895. See also State v. Lorenz, 152 Wn.2d 22, 93 P.3d 133 (2004), for a detailed discussion of use of “sexual contact.”