WPIC 46.04 Incest—First Degree—Elements
11 WAPRAC WPIC 46.04Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 46.04 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VII. Sex Crimes
WPIC CHAPTER 46. Bigamy and Incest
WPIC 46.04 Incest—First Degree—Elements
To convict the defendant of the crime of incest in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant engaged in sexual intercourse with (name of person);
(2) That (name of person) was related to the defendant [either legitimately or illegitimately] as [an ancestor] [a descendant] [a brother] [a sister] [of either the whole or the half blood];
(3) That at the time the defendant knew the person with whom [he] [she] was having sexual intercourse was so related to [him] [her]; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use WPIC 45.01 (Sexual Intercourse—Definition), with this instruction.
If the victim is a child or grandchild of the defendant, a descriptive word such as “child,” “son,” or “daughter” can be substituted for the term “descendant.” If no such word is substituted, then use WPIC 46.07 (Incest—Descendant—Definition), to define the term “descendant.”
For a discussion of the phrase “any of these acts” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.64.020.
A defendant's biological child is a descendant for purposes of the statute regardless of changes in legal status, such as through adoption. State v. Hall, 112 Wn.App. 164, 48 P.3d 350 (2002). In Hall, the court held that the biological relationship survives the relinquishment of parental rights, and adoption is not a defense to a charge of incest between a biological parent and a child the defendant knows is his or her offspring.
Because the definition of descendant includes a stepchild under the age of eighteen, the age of a stepchild may provide a complete defense to first degree incest. The age of the stepchild does not, however, become a separate element of the charge. State v. Arseneau, 75 Wn.App. 747, 752, 879 P.2d 1003 (1994).
[Current as of March 2020.]
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