WPIC 19.04.06 Prostitution—Defense

The instruction addresses the statutory defense for those who engage in prostitution as a result of trafficking or first degree promoting prostitution. The statutory defense became effective on June 7, 2012.

With this instruction, use as applicable WPIC 39A.03 (Human Trafficking—Second Degree—Definition) or WPIC 48.03 (Promoting Prostitution—First Degree—Definition). Alternatively, if the federal trafficking statute is at issue, rather than the state statute, then an instruction must be drafted using the language from the federal statute. For further discussion, see the Comment.

For a discussion of the statutory presumption in the bracketed third paragraph, see the Comment.

RCW 9A.88.040

Trafficking—State and federal statutes. The statute provides that the defense applies if the defendant engages in prostitution as a result of being a victim of the following offenses: (1) trafficking under the state statute, RCW 9A.40.100; (2) trafficking under the federal statute, the Trafficking Victims Protection Act of 2000, 22 U.S.C. Section 7101 et seq.; or (3) first degree promoting prostitution under RCW 9A.88.070. The instruction above refers generally to trafficking, without specifying the state or federal statute, because the jury does not need to be informed about the particular statutory citation. A separate instruction will be needed to define “trafficking” for jurors; if the state law applies, then practitioners may use WPIC 39A.07 (Human Trafficking—Trafficking—Definition); if the federal law applies, then practitioners will need to draft an instruction based on the language for the federal statute.

Statutory presumption. The statute creates a presumption that the defense applies if the person is named as a current victim in an information or investigative records upon which a conviction is obtained for trafficking or first degree promoting prostitution. RCW 9A.88.040. The presumption would rarely need to be included in a jury instruction; it is unlikely that prostitution charges would be pursued under these circumstances.

Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).