WPIC 39A.04 Human Trafficking—Second Degree—Elements

The instruction is drafted for cases in which the jury needs to be instructed using both 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 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).

Use bracketed material as applicable.

With this instruction, use WPIC 39A.005 (Human Trafficking—Trafficking—Definition).

For a discussion of the bracketed word “knowing” in element (1)(b), see the Comment. If applicable, use WPIC 10.02 (Knowledge—Knowingly—Definition).

RCW 9A.40.100(3).

For clarity, the WPI Committee has titled the instructions in this chapter as “human” trafficking, as there are a number of other offenses that use the term “trafficking.” See, e.g., RCW Chapter 9A.52. The Legislature simply used the word “trafficking” in the statute and the instructions are written to track the statutory language.

Knowledge. Element (1)(b) of the instruction includes a knowledge requirement, in brackets, which is not expressly stated in the statute. The WPI Committee believes that the Legislature did not intend to create strict liability for this means of committing the offense. Without a scienter requirement, the statute would criminalize unwitting participation in a trafficking operation, such as renting a car to a person who turns out to be a trafficker. A knowledge requirement of some kind would likely be needed for this part of the statute to survive a constitutional challenge.

The word “knowing” is in brackets because the knowledge issue can be addressed in other ways. For example, a court might choose to leave the word “participation” unqualified, and to then separately define “participation” in a manner that involves a scienter requirement, such as by defining “participation” in terms of accomplice liability.

Trafficking. For a discussion of the term “trafficking,” see the Comment to WPIC 39A.005 (Human Trafficking—Trafficking—Definition).

Comparison with promoting prostitution. For a general comparison of the elements for second degree trafficking and the elements for first degree promoting prostitution, see State v. Clark, 170 Wn.App. 166, 183–92, 283 P.3d 1116 (2012) (jury instructions not at issue).