WPIC 46.02 Bigamy—Elements

The court will need to determine which version of element (2) should be used. See the Comment below.

Use WPIC 10.01 (Intent—Intentionally—Definition) with this instruction. If the first version of element (2) is used, also use WPIC 10.02 (Knowledge—Knowingly—Definition).

Statute. Under RCW 9A.64.010(1), a person commits the crime of bigamy if he or she “intentionally marries or purports to marry another person when either person has a living spouse.” The statute sets out an affirmative defense if the defendant reasonably believes that he or she is legally entitled to marry. RCW 9A.64.010(2).

State's burden of proof. In State v. Seek, 109 Wn.App. 876, 37 P.3d 339 (2002), the Court of Appeals held that wrongful intent is an element of the crime of bigamy, so the State bears the burden of disproving the affirmative defense. The court also reasoned that the mental element of “intent” applies to all of the other elements of the statute.

It is unclear exactly what burden this places on the State. If the State's burden is limited to disproving the defense, it will be sufficient to prove that the defendant knew of the facts giving rise to the illegality of the marriage. This is the position set out in the first bracketed alternative for element (2).

On the other hand, Seek may require the State to prove intent, not just knowledge, with respect to all elements of the crime. This is the position set out in the second bracketed alternative for element (2). The court will need to decide which alternative is proper.

Jurisdictional element. Element (3) of the instruction differs from the normal jurisdictional element, by requiring the marriage or purported marriage to occur in Washington. See the general discussion of the jurisdictional element in WPIC 4.20 (Introduction). This difference is based on a case decided under the former bigamy statute, RCW 9.15.010. State v. Lewis, 46 Wn.2d 438, 282 P.2d 297 (1955). Under that statute, the crime of bigamy could be committed in two alternative ways (1) by marrying a second spouse, or (2) by continuing to cohabit with the second spouse in this state. The court said that under the first alternative, “[the] marriage must occur in this state to constitute an offense against our laws.” When the Legislature enacted the current bigamy statute, it left out the second alternative. The crime is now committed only by marrying or purporting to marry the second spouse. Lewis seems to indicate that this marriage must occur in Washington.

It is possible that a bigamous marriage that occurs outside Washington may affect persons or property within the state. This could give rise to Washington jurisdiction under the general jurisdictional statute, RCW 9A.04.030(5). If this situation arises, the court should craft an appropriate instruction.