WPIC 120.14 Rendering Criminal Assistance—Special Verdict—Relative

Use this instruction for first or second degree rendering criminal assistance when there is an issue whether the defendant is a relative as defined in RCW 9A.76.060. See also RCW 9A.76.900 for state registered domestic partners. Use the bracketed language in the first paragraph regarding the age of the defendant only if the charge is rendering criminal assistance in the first degree.

Insert this instruction immediately ahead of the last paragraph in the concluding instruction WPIC 151.00 (Basic Concluding Instruction) or WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt), whichever is being used.

Use the bracketed last paragraph if there is an issue whether the assistance was being rendered in one of the ways that precludes a relative from using this mitigating defense. Fill in the language as applicable from RCW 9A.76.050(4), (5), or (6). If only those parts of the statute are in issue, do not use this instruction. If only RCW 9A.76.050(1), (2), or (3) are in issue, give this instruction without the bracketed paragraph. This mitigating defense does not apply to rendering criminal assistance in the third degree.

With this instruction use WPIC 120.15 (Rendering Criminal Assistance—Special Verdict—Form).

If a case involves a registered domestic partner, and if it becomes necessary to define the term for jurors, an instruction can be drafted using language from RCW Chapter 26.60.

Whether to use this instruction in this form depends upon what decision the user makes on the burden of proof problem. If the legal decision on burden of proof is to treat the lack of the relationship as an element of the offense, then use only the paragraph from RCW 9A.76.060, which defines “relative.” See the Comment below. The elements instruction and the definition of the crime for the higher degree of the offense must be redrafted to include lack of relationship as an element and the lower degree must be submitted as a lesser included offense.

RCW 9A.76.060, 9A.76.070, 9A.76.080. This instruction incorporates a 2010 statutory amendment restricting the use of the relative defense in the case of rendering criminal assistance in the first degree to persons under the age of 18 at the time of the offense. RCW 9A.76.070(2)(b). The age limit does not apply to cases of rendering criminal assistance in the second degree. RCW 9A.76.080.

RCW 9A.76.070 states that rendering criminal assistance in the first degree is a gross misdemeanor if it is established by a preponderance of the evidence that the defendant is a relative of the person to whom assistance is rendered and under the age of 18 at the time of the offense. In all other cases it is a class C felony. RCW 9A.76.080 states that rendering criminal assistance in the second degree is a misdemeanor if it is established by a preponderance of the evidence that the defendant is a relative of the principal. In all other cases it is a gross misdemeanor.

There have been no cases that discuss whether the preponderance of the evidence standard embodied in these statutes violates the constitutional requirement that the State prove each element of the crime beyond a reasonable doubt. See WPIC 14.00 (Defenses—Introduction) for a discussion of the legal decision in connection with the burden of proof.

In State v. Anderson, 63 Wn.App. 257, 818 P.2d 40 (1991), the court held that the relative/nonrelative classification in the statutes is rational and did not deny the defendant equal protection of the laws.