WPIC 36.82 Cyberstalking—Gross Misdemeanor—Elements

Use bracketed material as applicable.

Use this instruction if the defendant is charged with the gross misdemeanor crime of cyberstalking or if the gross misdemeanor is being offered as a lesser included offense of the felony charge. If the only charge going to the jury is the felony level offense, then use WPIC 36.84 (Cyberstalking—Felony—Previous Conviction—Elements) or WPIC 36.85 (Cyberstalking—Felony—Threat to Kill—Elements) instead of this instruction.

Use with WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 36.86 (Electronic Communication—Definition). If element (3)(d) is used, then also use WPIC 2.24 (Threat—Definition).

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). 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 any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

In element (4), choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).

RCW 9.61.260(1).

Introduction. The crime of cyberstalking has been in existence since 2004 and largely mirrors the elements of telephone harassment. See RCW 9.61.230.

The WPI Committee has broken up RCW 9.61.260(1)(a) into two alternatives, as this section of the statute embraces two distinct types of conduct—using obscene language or images and suggesting the commission of lewd acts.

Jurisdiction. The crime of cyberstalking is “deemed to have been committed” at either the place from which the communication was made or the place the communication was received. RCW 9.61.260(4). The jurisdictional element has been drafted to reflect this special provision.

Constitutionality. Because the cyberstalking statute mirrors the telephone harassment statute, the WPI Committee assumes the cases discussing the constitutionality of the telephone harassment statute (or of various municipal ordinances closely paralleling RCW 9.61.230) will apply. The telephone harassment statute has been upheld against numerous constitutional challenges. See, e.g., City of Seattle v. Huff, 111 Wn.2d 923, 767 P.2d 572 (1989); State v. Alexander, 76 Wn.App. 830, 888 P.2d 175 (1995); State v. Dyson, 74 Wn.App. 237, 240, 872 P.2d 1115 (1994). Also see additional discussion of constitutional issues at the Comment to WPIC 36.72 (Telephone Harassment—Gross Misdemeanor—Elements).

For a discussion of the constitutional issues relating to true threats, see the discussion in the Comment to WPIC 2.24 (Threat—Definition).

Formation of intent. Because the cyberstalking statute largely mirrors the telephone harassment statute, the WPI Committee assumes the defendant's requisite intent is evaluated at the time that the defendant makes the communication, rather than when the conversation is under way. See State v. Lilyblad, 163 Wn.2d 1, 177 P.3d 686 (2008) (holding telephone harassment statute requires proof that defendant formed intent to harass the victim at time defendant initiates call to victim).