WPIC 49A.02 Sexual Exploitation of a Minor—Elements

Use this instruction with WPIC 10.02 (Knowledge—Knowingly—Definition), WPIC 47.09 (Minor—Definition), WPIC 49A.11 (Photograph—Definition), WPIC 49A.12 (Live Performance—Definition), and WPIC 49A.09 (Sexually Explicit Conduct—Definition).

The instruction is drafted for cases in which the jury needs to be instructed using two or more 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 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 (1), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

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).

If the statutory defense is in issue, use WPIC 19.04.03 (Communication with a Minor for Immoral Purposes—Sexual Exploitation of a Minor—Commercial Sexual Abuse of a Minor—Promoting Commercial Sexual Abuse of a Minor—Defense).

RCW 9.68A.040(1)(a), (b), (c).

Age of victim. In State v. Jackman, 156 Wn.2d 736, 744, 132 P.3d 136 (2006), the court held that including the birth dates of the victims in the jury instructions was an impermissible judicial comment on the evidence and reversible error, because the fundamental basis for the offenses was the fact that the victims were minors, and the jury instructions allowed the jury to infer that the State had proven the birth dates of the victims.

Affirmative conduct. In State v. Chester, 133 Wn.2d 15, 940 P.2d 1374 (1997), the court found the statute inapplicable where a father secretly videotaped his stepdaughter in hopes of capturing her on film in a state of undress. The court said the conduct did not satisfy the statute's requirement for affirmative conduct influencing his stepdaughter to engage in the behavior.

Constitutionality. The statute, including the definition of “sexually explicit conduct,” is not constitutionally overbroad or vague. State v. Myers, 133 Wn.2d 26, 941 P.2d 1102 (1997) (overbreadth); State v. Farmer, 116 Wn.2d 414, 805 P.2d 200 (1991) (overbreadth); State v. Bohannon, 62 Wn.App. 462, 814 P.2d 694 (1991) (vagueness).

Unit of prosecution. The statute requires conduct beyond merely photographing a child; “it is a combination of causing a minor to engage in a specific activity, with knowledge the activity will be photographed, that constitutes the offense.” Therefore, in a case charging multiple counts the “unit of prosecution” is one photo session for each minor involved in each session. State v. Root, 141 Wn.2d 701, 710–11, 9 P.3d 214 (2000).

Lesser included offenses. Communicating with a minor for immoral purposes is not a lesser-included offense of sexual exploitation of a minor. State v. Bohannon, 62 Wn.App. 462, 471–72, 814 P.2d 694 (1991). Bohannon also held that possession of depictions of a minor engaged in sexually explicit conduct was not a lesser included offense of sexual exploitation. The outcome on this issue was dictated by the different definitions of “minor” existing in 1988, when the crime was committed: the victim, who was 16 years old, was not a “minor” for purposes of possession of depictions under the law at that time, although she was a minor for purposes of sexual exploitation. State v. Bohannon, 62 Wn.App. at 471–72. In 1989, the Legislature redefined “minor,” for purposes of possession of depictions, to mean a person under 18 years old. See RCW 9.68A.011(5).