WPIC 49.02 Indecent Liberties—Elements

Use this instruction for cases in which the defendant is charged with having sexual contact with another person. For cases in which the defendant is charged with committing the crime by causing one person to have sexual contact with another person, see the Comment below.

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (2). 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 the related jury interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (2), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

With this instruction, use WPIC 45.07 (Sexual Contact—Definition) and WPIC 10.02 (Knowledge—Knowingly—Definition). Also use, as applicable, WPIC 45.03 (Forcible Compulsion—Definition), WPIC 45.04 (Consent—Definition), WPIC 45.05 (Mentally Incapacitated—Physically Helpless—Definition), WPIC 45.06 (Married—Definition), WPIC 45.10 (Developmentally Disabled—Developmental Disability—Definitions), WPIC 45.11 (Person With Supervisory Authority—Definition), WPIC 45.12 (Health Care Provider—Definition), WPIC 45.13 (Treatment—Definition), WPIC 45.14 (Frail Elder or Vulnerable Adult—Definition), WPIC 45.15 (Facility for Persons With a Mental Disorder—Definition), and WPIC 45.16 (Facility for Persons With a Chemical Dependency—Definition).

If a statutory defense is in issue, use WPIC 19.03 (Rape (Second Degree) or Indecent Liberties (Victim Helpless or Incapacitated)—Defense) or WPIC 19.03.02 (Rape (Second Degree) or Indecent Liberties (Health Care Provider)—Defense) 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.44.100(1). Prior to 2013, the indecent liberties statute exempted the victim's spouse in all cases. Statutory amendments in 2013 eliminated the marital exemption in cases where the perpetrator causes sexual contact by forcible compulsion, the victim is incapable of consent due to mental or physical incapacitation, or the perpetrator is a health care provider, the victim is the provider's patient, and the offense occurs during an examination or treatment session. The spousal exemption continues to apply in certain cases where the victim is a person with a developmental disability, a frail elder or vulnerable adult, or a resident of a facility for persons with a mental disorder or chemical dependency.

Knowingly. In State v. Mohamed, 175 Wn.App. 45, 51–57, 301 P.3d 504 (2013), the court rejected the argument that the State was required to prove that the defendant knew both that he caused the alleged sexual contact and that the victim was incapable of consent due to being physically helpless. The court held that “knowingly” modifies only the verb “causes” in section (1) of the statute, not subsection (b) of the statute. Id. at 56. Therefore, “knowledge that a person is incapable of consent by reason of being physically helpless is not an essential element” of the crime. State v. Mohamed, 175 Wn.App. at 57.

In a prosecution under a former provision of RCW 9A.88.100(1)(b), which prohibited sexual contact with a person who is less than fourteen years of age, the words “knowingly causes” were held not to require that the defendant initiate the sexual contact. The question is whether the defendant knowingly did the acts that resulted in the sexual contact. It is immaterial whether the victim invited or initiated the sexual contact. Welfare of Shope, 23 Wn.App. 567, 596 P.2d 1361 (1979).

Capacity to consent. The court in State v. VanVlack, 53 Wn.App. 86, 765 P.2d 349 (1988), held that the trial court did not err by failing to give an instruction defining consent in a prosecution for indecent liberties when the other person was incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless. The court noted that the issue in the case was not “consent” but rather “capacity to consent.” The court stated that the statute, when read together with the statutory definition of consent, “requires the State to prove that victims have mental defects rendering them incapable of consent either because they do not understand the nature and consequences of the acts, or because they are otherwise incapable.” State v. VanVlack, 53 Wn.App. at 91.

RCW 9A.44.030(1) provides that in “any prosecution under [chapter 9A.44 RCW] in which lack of consent is based solely upon the victim's mental incapacity or upon the victim's being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless.” In State v. Puapuaga, 54 Wn.App. 857, 776 P.2d 170 (1989), evidence that the victim was asleep was sufficient to permit a finding that the victim was physically helpless. For further discussion of mental incapacity or physical helplessness, see State v. Ortega-Martinez, 124 Wn.2d 702, 881 P.2d 231 (1994), and State v. VanVlack, 53 Wn.App. at 88–91. For further discussion on this defense see WPIC 14.00 (Defenses—Introduction) and the Comment to WPIC 19.03 (Rape (Second Degree) or Indecent Liberties (Victim Helpless or Incapacitated)—Defense).

Lesser included offenses. Assault in the fourth degree is a lesser included offense of indecent liberties. See State v. Bluford, 195 Wn.App. 570, 379 P.3d 163 (2016), reversed on other grounds, 188 Wn.2d 298, 393 P.3d 163 (2017). The Bluford court cited to the finding in State v. Stevens, 158 Wn.2d 304, 143 P.3d 817 (2007), a child molestation case. In Stevens, the Washington Supreme Court found that the requirement of “sexual contact” for child molestation includes touching for the purpose of sexual gratification. Because indecent liberties also requires sexual contact, and therefore touching, the legal prong for a lesser included of assault is satisfied.

Double jeopardy/equal protection. When an assault was an element of indecent liberties (forcible compulsion), and the touchings of the person were part of the forcible sexual molesting, a charge of second degree assault was double jeopardy and merged into the indecent liberties charge. State v. Ticeson, 26 Wn.App. 876, 614 P.2d 245 (1980).

Several cases have held there is no violation of equal protection by being charged with statutory rape and indecent liberties instead of incest. See, e.g., State v. Hodgson, 44 Wn.App. 592, 722 P.2d 1336 (1986), affirmed in part, reversed in part on other grounds, 108 Wn.2d 662, 740 P.2d 848 (1987); State v. Przybylski, 48 Wn.App. 661, 739 P.2d 1203 (1987). The statutes are not concurrent and a violation of the incest statutes does not always constitute a violation of either the indecent liberties statute or the statutory rape statute.

Alternatives with different seriousness levels. Indecent liberties can have three different seriousness levels, for sentence scoring purposes, depending on the means by which it was committed. If committed by forcible compulsion (RCW 9A.44.100(1)(a)), it is seriousness level X. If committed against a victim who is incapable of consent or one who is developmentally disabled (RCW 9A.44.100(1)(b) or (c)), it is seriousness level VII. If committed by any other means, it is unranked. In re Acron, 122 Wn.App. 886, 95 P.3d 1272 (2004). If the defendant is charged with committing indecent liberties by multiple means, a special verdict form may be needed to address the sentencing implications. Without a special verdict specifying which of the alternatives formed the basis of the jury's general verdict, the defendant would need to be sentenced according to the alternative having the lowest seriousness level. See State v. Tang, 77 Wn.App. 644, 650–51, 893 P.2d 646 (1995). For a discussion of related issues, see the Note on Use and Comment to WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault).

Causing sexual contact with a third person. Although indecent liberties most frequently occurs between a perpetrator and a victim (the two-person scenario), it can also be committed when a perpetrator causes the victim to have sexual contact with a third person (the three-person scenario). See RCW 9A.44.100(1) (“when he or she knowingly causes another person to have sexual contact with him or her or another”) (emphasis added).

The pattern instruction is drafted for the two-person scenario. Instructing the jury in the rarer three-person scenario will require careful drafting. Several of the alternative means for committing indecent liberties refer to characteristics of “the victim” or “the other person.” See subsections (a) through (f) of RCW 9A.44.100(1). In the two-person scenario, these references are straightforward. In the three-person scenario, however, a determination will need to be made whether these statutory references apply to the person the perpetrator caused to perform the sexual contact, or the person who received the sexual contact, or both.