WPIC 48.06 Promoting Prostitution—Second Degree—Elements

Use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 48.11 (Advanced Prostitution—Profited from Prostitution—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.88.080.

RCW 9A.88.080(1)(b), which proscribes advancing prostitution as defined in RCW 9A.88.060(1), is not unconstitutionally vague and does not abridge freedom of speech. State v. Cann, 92 Wn.2d 193, 595 P.2d 912 (1979).

A defendant charged with promoting prostitution in the second degree by advancing prostitution may not also be charged with conspiracy to promote prostitution under the general conspiracy statute. State v. Jessup, 31 Wn.App. 304, 641 P.2d 1185 (1982); State v. Putnam, 31 Wn.App. 156, 639 P.2d 858 (1982).

Permitting prostitution is not a lesser included offense of promoting prostitution in the second degree. State v. Putnam, 31 Wn.App. 156, 639 P.2d 858 (1982). Similarly, being an “accomplice to prostitution” is not a lesser included offense of promoting prostitution in the second degree. State v. Elliott, 114 Wn.2d 6, 785 P.2d 440 (1990).

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)-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.” Barrington, 52 Wn.App. at 482. Similarly, in Gooden, a unanimity instruction was not required because of the ongoing nature of the prostitution enterprise.

Each act of promoting a prostitute is a separate unit of prosecution. Thus, when a defendant promoted more than one individual during an overlapping time period, it constituted two units of prosecution and did not violate double jeopardy. Language of the statute and legislative history indicate the statute is victim-centered and focuses on each individual exploited. State v. Barbee, 187 Wn.2d 375, 382, 386 P.3d 729 (2017).