S-3769               _______________________________________________

                                                   SENATE BILL NO. 4704

                        _______________________________________________

State of Washington                              49th Legislature                              1986 Regular Session

By Senators Talmadge, Bluechel, Gaspard, Bender, Wojahn and Granlund

Read first time 1/21/86 and referred to Committee on Judiciary.

AN ACT Relating to assault; amending RCW 9A.04.110, 10.99.020, and 9A.16.020; adding a new section to chapter 9A.16 RCW; adding new sections to chapter 9A.36 RCW; creating a new section; repealing RCW 9A.36.010, 9A.36.020, 9A.36.030, 9A.36.040, and 28A.87.140; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

        Sec. 1.  Section 9A.04.110, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.04.110 are each amended to read as follows:

          In this title unless a different meaning plainly is required:

          (1) "Acted" includes, where relevant, omitted to act;

          (2) "Actor" includes, where relevant, a person failing to act;

          (3) "Assault" is:

(a) An act done with intent to cause fear in another of immediate bodily harm or death to that person or another;

(b) The intentional infliction of or attempt to inflict bodily harm upon another; or

(c) An intentional touching which would be offensive to a reasonable person or which creates an unreasonable risk of bodily harm to another;

(4) "Benefit" is any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary;

          (((4))) (5) (a) "Bodily injury," ((or)) "physical injury," or "bodily harm" means physical pain or injury, illness, or an impairment of physical condition;

(b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part;

(c) "Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily part or organ;

          (((5))) (6) "Building", in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;

          (((6))) (7) "Deadly weapon" means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or ((serious bodily injury)) substantial bodily harm;

          (((7))) (8) "Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging;

          (((8))) (9) "Government" includes any branch, subdivision, or agency of the government of this state and any county, city, district, or other local governmental unit;

          (((9))) (10) "Governmental function" includes any activity which a public servant is legally authorized or permitted to undertake on behalf of a government;

          (((10))) (11) "Indicted" and "indictment" include "informed against" and "information", and "informed against" and "information" include "indicted" and "indictment";

          (((11))) (12) "Judge" includes every judicial officer authorized alone or with others, to hold or preside over a court;

          (((12))) (13) "Malice" and "maliciously" shall import an evil intent, wish, or design to vex, annoy, or injure another person.  Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty;

          (((13))) (14) "Officer" and "public officer" means a person holding office under a city, county, or state government, or the federal government who performs a public function and in so doing is vested with the exercise of some sovereign power of government, and includes all assistants, deputies, clerks, and employees of any public officer and all persons lawfully exercising or assuming to exercise any of the powers or functions of a public officer;

          (((14))) (15) "Omission" means a failure to act;

          (((15))) (16) "Peace officer" means a duly appointed city, county, or state law enforcement officer;

          (((16))) (17) "Pecuniary benefit" means any gain or advantage in the form of money, property, commercial interest, or anything else the primary significance of which is economic gain;

          (((17))) (18) "Person", "he", and "actor" include any natural person and, where relevant, a corporation, joint stock association, or an unincorporated association;

          (((18))) (19) "Place of work" includes but is not limited to all the lands and other real property of a farm or ranch in the case of an actor who owns, operates, or is employed to work on such a farm or ranch;

          (((19))) (20) "Prison" means any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest, including but not limited to any state correctional institution or any county or city jail;

          (((20))) (21) "Prisoner" includes any person held in custody under process of law, or under lawful arrest;

          (((21))) (22) "Property" means anything of value, whether tangible or intangible, real or personal;

          (((22))) (23) "Public servant" means any person other than a witness who presently occupies the position of or has been elected, appointed, or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror, and any person participating as an advisor, consultant, or otherwise in performing a governmental function;

          (((23))) (24) "Signature" includes any memorandum, mark, or sign made with intent to authenticate any instrument or writing, or the subscription of any person thereto;

          (((24))) (25) "Statute" means the Constitution or an act of the legislature or initiative or referendum of this state;

          (((25))) (26) "Threat" means to communicate, directly or indirectly the intent:

          (a) To cause bodily injury in the future to the person threatened or to any other person; or

          (b) To cause physical damage to the property of a person other than the actor; or

          (c) To subject the person threatened or any other person to physical confinement or restraint; or

          (d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or

          (e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

          (f) To reveal any information sought to be concealed by the person threatened; or

          (g) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

          (h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or

          (i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or

          (j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships.

          (((26))) (27) "Vehicle" means a "motor vehicle" as defined in the vehicle and traffic laws, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail;

          (((27))) (28) Words in the present tense shall include the future tense; and in the masculine shall include the feminine and neuter genders; and in the singular shall include the plural; and in the plural shall include the singular.

NEW SECTION. Sec. 2.     (1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:

          (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or

          (b) Administers to or causes to be taken by another, poison or any other destructive or noxious substance; or

          (c) Assaults another and inflicts great bodily harm.

          (2) Assault in the first degree is a class A felony.

NEW SECTION. Sec. 3.     (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

          (a) Intentionally assaults another under circumstances in which substantial bodily harm is reasonably foreseeable and thereby inflicts substantial bodily harm; or

          (b) Assaults another with a deadly weapon; or

          (c) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or

          (d) With intent to commit a felony, assaults another.

          (2) Assault in the second degree is a class B felony.

NEW SECTION. Sec. 4.     (1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:

          (a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person, assaults another; or

          (b) Assaults a person employed as a transit operator or driver by a public or private transit company while that person is operating or is in control of a vehicle owned or operated by the transit company; or

          (c) With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.

          (2) Assault in the third degree is a class C felony.

NEW SECTION. Sec. 5.     (1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, he or she assaults another.

          (2) Assault in the fourth degree is a gross misdemeanor.

        Sec. 6.  Section 2, chapter 105, Laws of 1979 ex. sess. as amended by section 20, chapter 263, Laws of 1984 and RCW 10.99.020 are each amended to read as follows:

          Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

          (1) "Family or household members" means spouses, former spouses, adult persons related by blood or marriage, persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time.

          (2) "Domestic violence" includes but is not limited to any of the following crimes when committed by one family or household member against another:

          (a) Assault in the first degree (((RCW 9A.36.010))) (section 2 of this 1986 act);

          (b) Assault in the second degree (((RCW 9A.36.020))) (section 3 of this 1986 act);

          (c) ((Simple)) Assault (((RCW 9A.36.040))) in the third degree (section 4 of this 1986 act);

          (d) Assault in the fourth degree (section 5 of this 1986 act);

(e) Reckless endangerment (RCW 9A.36.050);

          (((e))) (f) Coercion (RCW 9A.36.070);

          (((f))) (g) Burglary in the first degree (RCW 9A.52.020);

          (((g))) (h) Burglary in the second degree (RCW 9A.52.030);

          (((h))) (i) Criminal trespass in the first degree (RCW 9A.52.070);

          (((i))) (j) Criminal trespass in the second degree (RCW 9A.52.080);

          (((j))) (k) Malicious mischief in the first degree (RCW 9A.48.070);

          (((k))) (l) Malicious mischief in the second degree (RCW 9A.48.080);

          (((l))) (m) Malicious mischief in the third degree (RCW 9A.48.090);

          (((m))) (n) Kidnapping in the first degree (RCW 9A.40.020);

          (((n))) (o) Kidnapping in the second degree (RCW 9A.40.030);

          (((o))) (p) Unlawful imprisonment (RCW 9A.40.040);

          (((p))) (q) Violation of the provisions of a restraining order restraining the person or excluding the person from a residence (RCW 26.09.300);

          (((q))) (r) Violation of the provisions of a protection order restraining the person or excluding the person from a residence (RCW 26.50.060, 26.50.070, or 26.50.130);

          (((r))) (s) Rape in the first degree (RCW ((9.79.170)) 9A.44.040); and

          (((s))) (t) Rape in the second degree (RCW ((9.79.180)) 9A.44.050).

          (3) "Victim" means a family or household member who has been subjected to domestic violence.

NEW SECTION. Sec. 7.  The following acts or parts of acts are each repealed:

                   (1) Section 9A.36.010, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.36.010;

          (2) Section 9A.36.020, chapter 260, Laws of 1975 1st ex. sess., section 5, chapter 38, Laws of 1975-'76 2nd ex. sess., section 9, chapter 244, Laws of 1979 ex. sess. and RCW 9A.36.020;

          (3) Section 9A.36.030, chapter 260, Laws of 1975 1st ex. sess., section 10, chapter 244, Laws of 1979 ex. sess., section 1, chapter 140, Laws of 1982 and RCW 9A.36.030;

          (4) Section 9A.36.040, chapter 260, Laws of 1975 1st ex. sess., section 18, chapter 263, Laws of 1984, section 8, chapter 303, Laws of 1985 and RCW 9A.36.040; and

          (5) Section 28A.87.140, chapter 223, Laws of 1969 ex. sess., section 61, chapter 199, Laws of 1969 ex. sess., section 318, chapter 258, Laws of 1984 and RCW 28A.87.140.

NEW SECTION. Sec. 8.     The enactment of section 7 of this act does not have the effect of terminating or in any way modifying any criminal liability in existence prior to the effective date of this act, nor affecting any proceeding instituted under the sections repealed.

NEW SECTION. Sec. 9.  A new section is added to chapter 9A.16 RCW to read as follows:

          It is the policy of this state to protect our children from assault and abuse and to encourage parents, teachers, and their authorized agents to use more effective methods of correction and restraint than assault of children.  However, the assault of a child is not unlawful when the assault is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child.  Any assault on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child's parent or guardian for purposes of restraining or correcting the child.

          The following assaults are never reasonable when used to correct or restrain a child:    (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) striking a child above the shoulders; (4) shaking a child under age three; (5) interfering with a child's breathing; (6) threatening a child with a deadly weapon; or (7) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain.  This list is illustrative of unreasonable assaults and is not intended to be exclusive.

        Sec. 10.  Section 9A.16.020, chapter 260, Laws of 1975 1st ex. sess. as last amended by section 7, chapter 244, Laws of 1979 ex. sess. and RCW 9A.16.020 are each amended to read as follows:

          The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

          (1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting him and acting under his direction;

          (2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him to a public officer competent to receive him into custody;

          (3) Whenever used by a party about to be injured, or by another lawfully aiding him, in preventing or attempting to prevent an offense against his person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his possession, in case the force is not more than is necessary;

          (4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;

          (5) ((Whenever used in a reasonable and moderate manner by a parent or his authorized agent, a guardian, master, or teacher in the exercise of lawful authority, to restrain or correct his child, ward, apprentice, or scholar;

          (6))) Whenever used by a carrier of passengers or his authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to his personal safety;

          (((7))) (6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to himself or another, or in enforcing necessary restraint for the protection of his person, or his restoration to health, during such period only as is necessary to obtain legal authority for the restraint or custody of his person.

NEW SECTION. Sec. 11.    Sections 2 through 5 of this act are each added to chapter 9A.36 RCW.

NEW SECTION. Sec. 12.    This act shall take effect on July 1, 1986.