WPIC 49C.00 Failure to Register as a Sex or Kidnapping Offender—Introduction

The statutes. RCW 9A.44.128 through 9A.44.148 impose registration requirements on persons convicted of sex or kidnapping offenses, as well as penalties for violating those requirements.

The statutes serve a regulatory purpose by prescribing when and where sex and kidnapping offenders are required to register and how the registration program is to be administered. RCW 9A.44.130 prescribes specific registration obligations, which may vary depending on circumstances such as the defendant's supervision status, the jurisdiction of the conviction, the defendant's employment or enrollment in school, the defendant's change of residence, return from out-of-state, or lack of a fixed residence.

RCW 9A.44.132 imposes criminal penalties on offenders who fail to register as required by RCW 9A.44.130. Because the crime of failure to register is statutorily linked to the various registration requirements of RCW 9A.44.130, the jury must be instructed not only on the core elements of failure to register, but also on the specific registration requirement allegedly violated, as set forth in the charging document. This issue is addressed in greater detail in the Comment to WPIC 49C.02 (Failure to Register as a Sex or Kidnapping Offender—Elements).

The Legislature has frequently amended the statutes and will likely continue to do so. Practitioners are therefore advised to determine what version of the statutes was in effect on the date the crime was committed (that is, the charging date in the information) and make any appropriate changes to the jury instructions.

The mandatory guilty plea forms, which are incorporated into CrR 4.2 and CrRLJ 4.2, both contain language informing a defendant who will be required to register of the registration requirement.

Constitutionality. In State v. Ward, 123 Wn.2d 488, 896 P.2d 1062 (1994), the Washington Supreme Court held that the requirement to register as a sex offender does not constitute punishment, and therefore does not violate the ex post facto prohibitions of the federal and state constitutions. State v. Ward at 123 Wn.2d at 511. The Court further held that because registration is a collateral consequence of conviction of a sex offense, there was no due process violation arising from the failure to notify sex offenders convicted prior to the enactment of the statute of the duty to register before they entered a plea of guilty. State v. Ward, 123 Wn.2d at 513–14. Finally, the Court held that the Legislature's classification of sex offenders for the purpose of setting deadlines for registration does not violate the equal protection clause. State v. Ward, 123 Wn.2d at 516–17. Accord State v. Enquist, 163 Wn.App. 41, 256 P.3d 1277 (2011) (specific registration requirements for transients, although more burdensome than those for defendants with a fixed address, are not punitive and do not violate ex post facto prohibitions).

The registration requirement has also been upheld against a challenge that it impermissibly burdens a defendant's right to travel. State v. Smith, 185 Wn.App. 945, 344 P.3d 1244 (2015); State v. Enquist, 163 Wn.App. 41, 256 P.3d 1277 (2011).

“Old Chief” stipulations. In practice, the parties often stipulate to one or more elements of this instruction. The broad rule is that the prosecuting authority need not accept a defendant's offer to stipulate; however, an exception has been created for what is often referred to as an “Old Chief” stipulation. State v. Johnson, 90 Wn.App. 54, 62, 950 P.2d 981 (1998). For a discussion of “Old Chief” stipulations, see the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).