WPIC 48.04 Promoting Prostitution—First Degree—Threat or Force—Elements

Use this instruction for promoting prostitution in the first degree based upon the use of threat or force.

The instruction is drafted for cases in which the jury needs to be instructed using both of the alternatives for element (1). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form.)

For any case in which substantial evidence supports only one of the alternatives in element (1), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form). If paragraph (1)(b) is being used without paragraph (1)(a), then a modification will be necessary to provide context for the words “such threat or such force;” modified language is set forth in the Note on Use to WPIC 48.03 (Promoting Prostitution—First Degree—Definition).

Use WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction. Use, as applicable, WPIC 48.11 (Advanced Prostitution—Profited from Prostitution—Definition) and WPIC 2.24 (Threats—Definition) with this instruction.

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).

RCW 9A.88.070.

The instruction has been revised to set forth “advances prostitution” and “profits from prostitution” as alternative means. This change also makes clear that the word “knowingly” applies to both “advanced prostitution” and “profited from prostitution.” See State v. Shipp, 93 Wn.2d 510, 519, 610 P.2d 1322 (1980) (holding that the word “knowing” in this statute modifies all of the terms that follow it, not only the word “advances”).

RCW 9A.88.070(1)(b), which proscribes profiting from prostitution as defined in RCW 9A.88.060(2), is not unconstitutionally vague and a person is guilty thereunder for receiving any portion of a prostitute's earnings pursuant to any agreement, however informal. State v. Yancy, 92 Wn.2d 153, 594 P.2d 1342 (1979).

If the charge of promoting prostitution involves more than a single distinct act, a determination will need to be made whether a unanimity instruction should be given.

In State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), the Washington Supreme Court held that when the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct, jury unanimity must be protected. To protect jury unanimity, the State must either elect which act it is relying upon for conviction or the jury must be instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. However, the Petrich court recognized an exception to this rule, when under “appropriate facts,” a continuing course of conduct forms the basis of a charge in the information. Three cases—State v. Elliott, 114 Wn.2d 6, 785 P.2d 440 (1990), State v. Barrington, 52 Wn.App. 478, 761 P.2d 632 (1988), and State v. Gooden, 51 Wn.App. 615, 754 P.2d 1000 (1988)—each hold that promoting prostitution may be a continuing course of conduct that falls within the exception discussed above. The court in Gooden, citing the definitions of “advances prostitution” and “profits from prostitution” in RCW 9A.88.060, noted that:

State v. Gooden, 51 Wn.App. at 618. Also see State v. Barrington, 52 Wn.App. at 482.

Whether a unanimity instruction is necessary will depend on the circumstances of each case. In Barrington, the court held that a unanimity instruction was not necessary because the evidence indicated that there was an ongoing enterprise of promoting prostitution, “not separate distinct acts occurring in a separate time frame or identifying place.” State v. Barrington, 52 Wn.App. at 482. Similarly, in Gooden, a unanimity instruction was not required because of the ongoing nature of the prostitution enterprise.

Human Trafficking intersection. Second-degree human trafficking and first-degree promoting prostitution are not the same offense in law or in fact; they require proof of different elements. State v. Clark, 170 Wn.App. 166, 283 P.3d 1116 (2012).