S-3721.4 _____________________________________________
SUBSTITUTE SENATE BILL 6114
_____________________________________________
State of Washington 58th Legislature 2004 Regular Session
By Senate Committee on Judiciary (originally sponsored by Senators
Stevens, Winsley, Oke, Schmidt, Honeyford, Mulliken, Parlette,
Finkbeiner, Deccio, Swecker, Zarelli, Morton, Hewitt, Sheahan, Horn,
Rasmussen, Roach and Benton)
READ FIRST TIME 01/30/04.
AN ACT Relating to criminal offenses involving animals or natural
resources; amending RCW 9A.82.090, 9A.82.100, 9A.82.120, and 9.94A.535;
reenacting and amending RCW 9A.82.010 and 9.94A.515; adding a new chapter to
Title 9A RCW; prescribing penalties; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
{+ NEW SECTION. +} Sec. 1. The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Animal" means any warm or cold-blooded animal or insect which is
lawfully being used in food, fur, or fiber production, agriculture, research,
testing, or education. "Animal" does not include any animal or insect held
primarily as a pet.
(2) "Activity involving animals" means any lawful activity involving the
use of animals or animal parts, including:
(a) Hunting, fishing, and trapping;
(b) Food production, processing, and preparation;
(c) Clothing manufacturing and distribution;
(d) Medical or other research;
(e) Entertainment and recreation;
(f) Agriculture; or
(g) Any other services involving the use of animals.
(3) "Activity involving natural resources" means any lawful activity
involving the use of a natural resource with an economic value, including
mining, foresting, harvesting, or processing natural resources.
(4) "Animal facility" means a vehicle, building, structure, research
facility, nature preserve, or other premises where an animal is lawfully:
(a) Housed, exhibited, bred, or offered for sale, including a zoo,
amusement park, or preserve, or a location at which a circus or a rodeo or other
competitive event is held; or
(b) Used for scientific purposes, including research, testing, and
experiments.
(5) "Animal rights or ecological terrorist organization" means any
association, organization, entity, coalition, or combination of two or more
persons with the primary or incidental purpose of intimidating, coercing,
causing fear with the intent to obstruct, or impeding any person from
participating in an activity involving animals, activity involving natural
resources, or an animal facility, horticultural facility, or research facility,
or the lawful activity of mining, foresting, harvesting, gathering, or
processing natural resources.
(6) "Effective consent" means consent by the owner or by a person legally
authorized to act for the owner. Consent is not effective if it is:
(a) Induced by force or threat;
(b) Given by a person that the offender knows or reasonably should have
known is not an agent for the owner; or
(c) Given by a person who by reason of youth, mental disease, or defect,
or being under the influence of drugs or alcohol is known by the offender to be
unable to make reasonable decisions.
(7) "Horticultural facility" means any horticultural premises as defined
in RCW 15.08.010, any horticultural facility as defined in RCW 15.13.250, or any
premises used for horticultural research or educational purposes.
(8) "Natural resource" means a material source of wealth, such as timber,
fresh water, or a mineral deposit, that occurs in a natural state and has
economic value.
{+ NEW SECTION. +} Sec. 2. (1) It is unlawful for an animal or ecological
terrorist organization or any person acting on its behalf or at its request or
for its benefit or any individual to intentionally:
(a) Deprive the owner of an animal or natural resource from lawfully
participating in an activity involving animals, an activity involving natural
resources, or lawful use of a horticultural facility by:
(i) Interfering with access to or from an animal, natural resource, or
horticultural facility by:
(A) Physically obstructing or impeding the free passage of a person seeking
to enter or depart from the facility or from common areas of the real property
upon which the facility is located;
(B) Making noise that unreasonably disturbs the peace within the facility;
(C) Telephoning the facility repeatedly, or knowingly permitting any
telephone under his or her control to be used for such a purpose; or
(D) Threatening to inflict injury on the owners, agents, employees,
animals, or property of the facility or knowingly permitting any telephone under
his or her control to be used for such a purpose;
(ii) Taking or detaining an animal, natural resource, or other property and
agreeing to restore it only upon reward or other compensation; or
(iii) Damaging or disposing of an animal, natural resource, or other
property or to so alter its condition or usefulness that the value of the
animal, natural resource, or other property is substantially reduced.
(b) Obstruct or impede the use of an animal facility or horticultural
facility or the use of a natural resource without the effective consent of the
owner by:
(i) Damaging or destroying an animal or horticultural facility or other
property in or on the premises;
(ii) Entering an animal or horticultural facility that is at the time
closed to the public;
(iii) Remaining concealed in an animal or horticultural facility with the
intent to commit an act prohibited by this chapter;
(iv) Entering an animal or horticultural facility and committing or
attempting to commit an act prohibited by this chapter;
(v) Entering an animal or horticultural facility to take pictures by
photograph, video camera, or other means with the intent to commit criminal
activities;
(vi) Entering or remaining on the premises of an animal or horticultural
facility if the person or organization:
(A) Had notice that the entry was forbidden; or
(B) Received notice to depart but failed to do so; or
(c) Participate in or support animal or ecological terrorism, including
raising, soliciting, collecting, or providing any person with material,
financial support, or other resources such as lodging, training, safe houses,
false documentation, or identification, communications, equipment, or
transportation that will be used in whole or in part to encourage, plan,
prepare, carry out, publicize, promote, or aid an act of animal or ecological
terrorism, the concealment of, or an escape from an act of animal or ecological
terrorism.
(2) It is an exception to the application of subsection (1) of this section
that the conduct is engaged in by:
(a) A government agency or an employee of a government agency acting in the
course and scope of his or her employment;
(b) An employee of a financial institution or other secured party acting
in the course and scope of his or her employment;
(c) An employee of an animal control authority or a recognized animal
shelter or humane society acting in the course and scope of his or her
employment;
(d) An employee or employee organization participating in a strike, work
slowdown, or stoppage of any kind, or other labor-related dispute, lawfully
picketing, or providing the public with truthful information regarding the
existence of a dispute with the employer.
{+ NEW SECTION. +} Sec. 3. (1) A person convicted of an act that violates
section 2 of this act and that results in one thousand five hundred dollars or
less in physical damage or destruction of property is guilty of a gross
misdemeanor and shall be punished according to chapter 9A.20 RCW.
(2) A person convicted of an act that violates section 2 of this act and
that results in more than one thousand five hundred dollars in physical damage
or destruction of property is guilty of a class C felony and shall be punished
according to chapter 9A.20 RCW.
(3) Any person convicted of an act that violates section 2 of this act, and
such act intentionally or negligently results in bodily harm to any individual,
is guilty of a class B felony and shall be punished according to chapter 9A.20
RCW.
(4) If conduct that constitutes an offense under this section also
constitutes an offense under any other law, the defendant may be prosecuted
under either law or both laws.
{+ NEW SECTION. +} Sec. 4. There is created the registry of animal and
ecological terrorists. A person who is convicted of or pleads guilty to an act
that violates this chapter shall be registered with the attorney general on a
form prescribed by the attorney general. The registry shall contain the name,
a current residence address, a recent photograph, and signature of the offender.
The offender is required to provide written notice to the attorney general
regarding any change in name or residence address within thirty days of making
the change. The attorney general shall create a website containing the
information set forth in this section for each person who is convicted or pleads
guilty to a violation of this chapter. Information regarding an offender shall
remain on the website for not less than three years at which time the registrant
may apply to the attorney general for removal after a hearing on the application
for removal.
Sec. 5. RCW 9A.82.010 and 2003 c 119 s 6, 2003 c 113 s 3, and 2003 c 53
s 85 are each reenacted and amended to read as follows:
Unless the context requires the contrary, the definitions in this section
apply throughout this chapter.
(1)(a) "Beneficial interest" means:
(i) The interest of a person as a beneficiary under a trust established
under Title 11 RCW in which the trustee for the trust holds legal or record
title to real property;
(ii) The interest of a person as a beneficiary under any other trust
arrangement under which a trustee holds legal or record title to real property
for the benefit of the beneficiary; or
(iii) The interest of a person under any other form of express fiduciary
arrangement under which one person holds legal or record title to real property
for the benefit of the other person.
(b) "Beneficial interest" does not include the interest of a stockholder
in a corporation or the interest of a partner in a general partnership or
limited partnership.
(c) A beneficial interest is considered to be located where the real
property owned by the trustee is located.
(2) "Control" means the possession of a sufficient interest to permit
substantial direction over the affairs of an enterprise.
(3) "Creditor" means a person making an extension of credit or a person
claiming by, under, or through a person making an extension of credit.
(4) "Criminal profiteering" means any act, including any anticipatory or
completed offense, committed for financial gain, {+ or an offense, including an
anticipatory or completed offense, or a lawfully obtained and otherwise
admissible confession to have completed an offense, that is defined in chapter
9A.-- RCW (sections 1 through 4 of this act), whether or not committed for
financial gain, +} that is chargeable or indictable under the laws of the state
in which the act occurred and, if the act occurred in a state other than this
state, would be chargeable or indictable under the laws of this state had the
act occurred in this state and punishable as a felony and by imprisonment for
more than one year, regardless of whether the act is charged or indicted, as any
of the following:
(a) Murder, as defined in RCW 9A.32.030 and 9A.32.050;
(b) Robbery, as defined in RCW 9A.56.200 and 9A.56.210;
(c) Kidnapping, as defined in RCW 9A.40.020 and 9A.40.030;
(d) Forgery, as defined in RCW 9A.60.020 and 9A.60.030;
(e) Theft, as defined in RCW 9A.56.030, 9A.56.040, 9A.56.060, 9A.56.080,
and 9A.56.083;
(f) Unlawful sale of subscription television services, as defined in RCW
9A.56.230;
(g) Theft of telecommunication services or unlawful manufacture of a
telecommunication device, as defined in RCW 9A.56.262 and 9A.56.264;
(h) Child selling or child buying, as defined in RCW 9A.64.030;
(i) Bribery, as defined in RCW 9A.68.010, 9A.68.020, 9A.68.040, and
9A.68.050;
(j) Gambling, as defined in RCW 9.46.220 and 9.46.215 and 9.46.217;
(k) Extortion, as defined in RCW 9A.56.120 and 9A.56.130;
(l) Unlawful production of payment instruments, unlawful possession of
payment instruments, unlawful possession of a personal identification device,
unlawful possession of fictitious identification, or unlawful possession of
instruments of financial fraud, as defined in RCW 9A.56.320;
(m) Extortionate extension of credit, as defined in RCW 9A.82.020;
(n) Advancing money for use in an extortionate extension of credit, as
defined in RCW 9A.82.030;
(o) Collection of an extortionate extension of credit, as defined in RCW
9A.82.040;
(p) Collection of an unlawful debt, as defined in RCW 9A.82.045;
(q) Delivery or manufacture of controlled substances or possession with
intent to deliver or manufacture controlled substances under chapter 69.50 RCW;
(r) Trafficking in stolen property, as defined in RCW 9A.82.050;
(s) Leading organized crime, as defined in RCW 9A.82.060;
(t) Money laundering, as defined in RCW 9A.83.020;
(u) Obstructing criminal investigations or prosecutions in violation of RCW
9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.72.130, 9A.76.070, or 9A.76.180;
(v) Fraud in the purchase or sale of securities, as defined in RCW
21.20.010;
(w) Promoting pornography, as defined in RCW 9.68.140;
(x) Sexual exploitation of children, as defined in RCW 9.68A.040,
9.68A.050, and 9.68A.060;
(y) Promoting prostitution, as defined in RCW 9A.88.070 and 9A.88.080;
(z) Arson, as defined in RCW 9A.48.020 and 9A.48.030;
(aa) Assault, as defined in RCW 9A.36.011 and 9A.36.021;
(bb) Assault of a child, as defined in RCW 9A.36.120 and 9A.36.130;
(cc) A pattern of equity skimming, as defined in RCW 61.34.020;
(dd) Commercial telephone solicitation in violation of RCW 19.158.040(1);
(ee) Trafficking in insurance claims, as defined in RCW 48.30A.015;
(ff) Unlawful practice of law, as defined in RCW 2.48.180;
(gg) Commercial bribery, as defined in RCW 9A.68.060;
(hh) Health care false claims, as defined in RCW 48.80.030;
(ii) Unlicensed practice of a profession or business, as defined in RCW
18.130.190(7);
(jj) Improperly obtaining financial information, as defined in RCW
9.35.010;
(kk) Identity theft, as defined in RCW 9.35.020;
(ll) Unlawful shipment of cigarettes in violation of RCW 70.155.105(6) (a)
or (b); (({- or -}))
(mm) Unlawful shipment of cigarettes in violation of RCW 82.24.110(2){+ ;
or
(nn) A violation of chapter 9A.-- RCW (sections 1 through 4 of this act)
+}.
(5) "Dealer in property" means a person who buys and sells property as a
business.
(6) "Debtor" means a person to whom an extension of credit is made or a
person who guarantees the repayment of an extension of credit or in any manner
undertakes to indemnify the creditor against loss resulting from the failure of
a person to whom an extension is made to repay the same.
(7) "Documentary material" means any book, paper, document, writing,
drawing, graph, chart, photograph, phonograph record, magnetic tape, computer
printout, other data compilation from which information can be obtained or from
which information can be translated into usable form, or other tangible item.
(8) "Enterprise" includes any individual, sole proprietorship, partnership,
corporation, business trust, or other profit or nonprofit legal entity, and
includes any union, association, or group of individuals associated in fact
although not a legal entity, and both illicit and licit enterprises and
governmental and nongovernmental entities.
(9) "Extortionate extension of credit" means an extension of credit with
respect to which it is the understanding of the creditor and the debtor at the
time the extension is made that delay in making repayment or failure to make
repayment could result in the use of violence or other criminal means to cause
harm to the person, reputation, or property of any person.
(10) "Extortionate means" means the use, or an express or implicit threat
of use, of violence or other criminal means to cause harm to the person,
reputation, or property of any person.
(11) "Financial institution" means any bank, trust company, savings and
loan association, savings bank, mutual savings bank, credit union, or loan
company under the jurisdiction of the state or an agency of the United States.
(12) "Pattern of criminal profiteering activity" means engaging in at least
three acts of criminal profiteering, one of which occurred after July 1, 1985,
and the last of which occurred within five years, excluding any period of
imprisonment, after the commission of the earliest act of criminal profiteering.
In order to constitute a pattern, the three acts must have the same or similar
intent, results, accomplices, principals, victims, or methods of commission, or
be otherwise interrelated by distinguishing characteristics including a nexus
to the same enterprise, and must not be isolated events. However, in any civil
proceedings brought pursuant to RCW 9A.82.100 by any person other than the
attorney general or county prosecuting attorney in which one or more acts of
fraud in the purchase or sale of securities are asserted as acts of criminal
profiteering activity, it is a condition to civil liability under RCW 9A.82.100
that the defendant has been convicted in a criminal proceeding of fraud in the
purchase or sale of securities under RCW 21.20.400 or under the laws of another
state or of the United States requiring the same elements of proof, but such
conviction need not relate to any act or acts asserted as acts of criminal
profiteering activity in such civil action under RCW 9A.82.100.
(13) "Real property" means any real property or interest in real property,
including but not limited to a land sale contract, lease, or mortgage of real
property.
(14) "Records" means any book, paper, writing, record, computer program,
or other material.
(15) "Repayment of an extension of credit" means the repayment,
satisfaction, or discharge in whole or in part of a debt or claim, acknowledged
or disputed, valid or invalid, resulting from or in connection with that
extension of credit.
(16) "Stolen property" means property that has been obtained by theft,
robbery, or extortion.
(17) "To collect an extension of credit" means to induce in any way a
person to make repayment thereof.
(18) "To extend credit" means to make or renew a loan or to enter into an
agreement, tacit or express, whereby the repayment or satisfaction of a debt or
claim, whether acknowledged or disputed, valid or invalid, and however arising,
may or shall be deferred.
(19) "Traffic" means to sell, transfer, distribute, dispense, or otherwise
dispose of stolen property to another person, or to buy, receive, possess, or
obtain control of stolen property, with intent to sell, transfer, distribute,
dispense, or otherwise dispose of the property to another person.
(20)(a) "Trustee" means:
(i) A person acting as a trustee under a trust established under Title 11
RCW in which the trustee holds legal or record title to real property;
(ii) A person who holds legal or record title to real property in which
another person has a beneficial interest; or
(iii) A successor trustee to a person who is a trustee under (a)(i) or (ii)
of this subsection.
(b) "Trustee" does not mean a person appointed or acting as:
(i) A personal representative under Title 11 RCW;
(ii) A trustee of any testamentary trust;
(iii) A trustee of any indenture of trust under which a bond is issued; or
(iv) A trustee under a deed of trust.
(21) "Unlawful debt" means any money or other thing of value constituting
principal or interest of a debt that is legally unenforceable in the state in
full or in part because the debt was incurred or contracted:
(a) In violation of any one of the following:
(i) Chapter 67.16 RCW relating to horse racing;
(ii) Chapter 9.46 RCW relating to gambling;
(b) In a gambling activity in violation of federal law; or
(c) In connection with the business of lending money or a thing of value
at a rate that is at least twice the permitted rate under the applicable state
or federal law relating to usury.
Sec. 6. RCW 9A.82.090 and 2003 c 267 s 5 are each amended to read as
follows:
During the pendency of any criminal case charging a violation of RCW
9A.82.060 or 9A.82.080, (({- or -})) an offense defined in RCW 9A.40.100, {+ or
an offense, including an anticipatory or completed offense, or a lawfully
obtained and otherwise admissible confession to have completed an offense, that
is defined in chapter 9A.-- RCW (sections 1 through 4 of this act), whether or
not committed for financial gain, +} the superior court may, in addition to its
other powers, issue an order pursuant to RCW 9A.82.100 (2) or (3). Upon
conviction of a person for a violation of RCW 9A.82.060 or 9A.82.080, (({- or -
})) an offense defined in RCW 9A.40.100, {+ or an offense, including an
anticipatory or completed offense, or a lawfully obtained and otherwise
admissible confession to have completed an offense, that is defined in chapter
9A.-- RCW (sections 1 through 4 of this act), whether or not committed for
financial gain, +} the superior court may, in addition to its other powers of
disposition, issue an order pursuant to RCW 9A.82.100.
Sec. 7. RCW 9A.82.100 and 2003 c 267 s 6 are each amended to read as
follows:
(1)(a) A person who sustains injury to his or her person, business, or
property by an act of criminal profiteering that is part of a pattern of
criminal profiteering activity, or by an offense defined in RCW 9A.40.100, {+
or an offense, including an anticipatory or completed offense, or a lawfully
obtained and otherwise admissible confession to have completed an offense, that
is defined in chapter 9A.-- RCW (sections 1 through 4 of this act), whether or
not committed for financial gain, +} or by a violation of RCW 9A.82.060 or
9A.82.080 may file an action in superior court for the recovery of damages and
the costs of the suit, including reasonable investigative and attorney's fees.
(b) The attorney general or county prosecuting attorney may file an action:
(i) On behalf of those persons injured or, respectively, on behalf of the state
or county if the entity has sustained damages, or (ii) to prevent, restrain, or
remedy a pattern of criminal profiteering activity, or an offense defined in RCW
9A.40.100, {+ or an offense, including an anticipatory or completed offense, or
a lawfully obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 4 of this
act), whether or not committed for financial gain, +} or a violation of RCW
9A.82.060 or 9A.82.080.
(c) An action for damages filed by or on behalf of an injured person, the
state, or the county shall be for the recovery of damages and the costs of the
suit, including reasonable investigative and attorney's fees.
(d) In an action filed to prevent, restrain, or remedy a pattern of
criminal profiteering activity, or an offense defined in RCW 9A.40.100, {+ or
an offense, including an anticipatory or completed offense, or a lawfully
obtained and otherwise admissible confession to have completed an offense, that
is defined in chapter 9A.-- RCW (sections 1 through 4 of this act), whether or
not committed for financial gain, +} or a violation of RCW 9A.82.060 or
9A.82.080, the court, upon proof of the violation, may impose a civil penalty
not exceeding two hundred fifty thousand dollars, in addition to awarding the
cost of the suit, including reasonable investigative and attorney's fees.
(2) The superior court has jurisdiction to prevent, restrain, and remedy
a pattern of criminal profiteering, or an offense defined in RCW 9A.40.100, {+
or an offense, including an anticipatory or completed offense, or a lawfully
obtained and otherwise admissible confession to have completed an offense, that
is defined in chapter 9A.-- RCW (sections 1 through 4 of this act), whether or
not committed for financial gain, +} or a violation of RCW 9A.82.060 or
9A.82.080 after making provision for the rights of all innocent persons affected
by the violation and after hearing or trial, as appropriate, by issuing
appropriate orders.
(3) Prior to a determination of liability, orders issued under subsection
(2) of this section may include, but are not limited to, entering restraining
orders or prohibitions or taking such other actions, including the acceptance
of satisfactory performance bonds, in connection with any property or other
interest subject to damages, forfeiture, or other restraints pursuant to this
section as the court deems proper. The orders may also include attachment,
receivership, or injunctive relief in regard to personal or real property
pursuant to Title 7 RCW. In shaping the reach or scope of receivership,
attachment, or injunctive relief, the superior court shall provide for the
protection of bona fide interests in property, including community property, of
persons who were not involved in the violation of this chapter, except to the
extent that such interests or property were acquired or used in such a way as
to be subject to forfeiture under RCW 9A.82.100(4)(f).
(4) Following a determination of liability, orders may include, but are not
limited to:
(a) Ordering any person to divest himself or herself of any interest,
direct or indirect, in any enterprise.
(b) Imposing reasonable restrictions on the future activities or
investments of any person, including prohibiting any person from engaging in the
same type of endeavor as the enterprise engaged in, the activities of which
affect the laws of this state, to the extent the Constitutions of the United
States and this state permit.
(c) Ordering dissolution or reorganization of any enterprise.
(d) Ordering the payment of actual damages sustained to those persons
injured by a violation of RCW 9A.82.060 or 9A.82.080, or an offense defined in
RCW 9A.40.100, {+ or an offense, including an anticipatory or completed offense,
or a lawfully obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 4 of this
act), whether or not committed for financial gain, +} or an act of criminal
profiteering that is part of a pattern of criminal profiteering, and in the
court's discretion, increasing the payment to an amount not exceeding three
times the actual damages sustained.
(e) Ordering the payment of all costs and expenses of the prosecution and
investigation of a pattern of criminal profiteering, or an offense defined in
RCW 9A.40.100, {+ or an offense, including an anticipatory or completed offense,
or a lawfully obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 4 of this
act), whether or not committed for financial gain, +} activity or a violation
of RCW 9A.82.060 or 9A.82.080, civil and criminal, incurred by the state or
county, including any costs of defense provided at public expense, as
appropriate to the state general fund or the antiprofiteering revolving fund of
the county.
(f) Ordering forfeiture first as restitution to any person damaged by an
act of criminal profiteering that is part of a pattern of criminal profiteering,
or by an offense defined in RCW 9A.40.100, {+ or an offense, including an
anticipatory or completed offense, or a lawfully obtained and otherwise
admissible confession to have completed an offense, that is defined in chapter
9A.-- RCW (sections 1 through 4 of this act), whether or not committed for
financial gain, +} then to the state general fund or antiprofiteering revolving
fund of the county, as appropriate, to the extent not already ordered to be paid
in other damages, of the following:
(i) Any property or other interest acquired or maintained in violation of
RCW 9A.82.060 or 9A.82.080 to the extent of the investment of funds, and any
appreciation or income attributable to the investment, from a violation of RCW
9A.82.060 or 9A.82.080.
(ii) Any property, contractual right, or claim against property used to
influence any enterprise that a person has established, operated, controlled,
conducted, or participated in the conduct of, in violation of RCW 9A.82.060 or
9A.82.080.
(iii) All proceeds traceable to or derived from an offense included in the
pattern of criminal profiteering activity, or an offense defined in RCW
9A.40.100, {+ or an offense, including an anticipatory or completed offense, or
a lawfully obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 4 of this
act), whether or not committed for financial gain, +} and all moneys, negotiable
instruments, securities, and other things of value significantly used or
intended to be used significantly to facilitate commission of the offense.
(g) Ordering payment to the state general fund or antiprofiteering
revolving fund of the county, as appropriate, of an amount equal to the gain a
person has acquired or maintained through an offense included in the definition
of criminal profiteering.
(5) In addition to or in lieu of an action under this section, the attorney
general or county prosecuting attorney may file an action for forfeiture to the
state general fund or antiprofiteering revolving fund of the county, as
appropriate, to the extent not already ordered paid pursuant to this section,
of the following:
(a) Any interest acquired or maintained by a person in violation of RCW
9A.82.060 or 9A.82.080 to the extent of the investment of funds obtained from
a violation of RCW 9A.82.060 or 9A.82.080 and any appreciation or income
attributable to the investment.
(b) Any property, contractual right, or claim against property used to
influence any enterprise that a person has established, operated, controlled,
conducted, or participated in the conduct of, in violation of RCW 9A.82.060 or
9A.82.080.
(c) All proceeds traceable to or derived from an offense included in the
pattern of criminal profiteering activity, or an offense defined in RCW
9A.40.100, {+ or an offense, including an anticipatory or completed offense, or
a lawfully obtained and otherwise admissible confession to have completed an
offense, that is defined in chapter 9A.-- RCW (sections 1 through 4 of this
act), whether or not committed for financial gain, +} and all moneys, negotiable
instruments, securities, and other things of value significantly used or
intended to be used significantly to facilitate the commission of the offense.
(6) A defendant convicted in any criminal proceeding is precluded in any
civil proceeding from denying the essential allegations of the criminal offense
proven in the criminal trial in which the defendant was convicted. For the
purposes of this subsection, a conviction shall be deemed to have occurred upon
a verdict, finding, or plea of guilty, notwithstanding the fact that appellate
review of the conviction and sentence has been or may be sought. If a
subsequent reversal of the conviction occurs, any judgment that was based upon
that conviction may be reopened upon motion of the defendant.
(7) The initiation of civil proceedings under this section shall be
commenced within three years after discovery of the pattern of criminal
profiteering activity or after the pattern should reasonably have been
discovered or, in the case of an offense that is defined in RCW 9A.40.100 {+ or
chapter 9A.-- RCW (sections 1 through 4 of this act) +}, within three years
after the final disposition of any criminal charges relating to the offense,
whichever is later.
(8) The attorney general or county prosecuting attorney may, in a civil
action brought pursuant to this section, file with the clerk of the superior
court a certificate stating that the case is of special public importance. A
copy of that certificate shall be furnished immediately by the clerk to the
presiding chief judge of the superior court in which the action is pending and,
upon receipt of the copy, the judge shall immediately designate a judge to hear
and determine the action. The judge so designated shall promptly assign the
action for hearing, participate in the hearings and determination, and cause the
action to be expedited.
(9) The standard of proof in actions brought pursuant to this section is
the preponderance of the evidence test.
(10) A person other than the attorney general or county prosecuting
attorney who files an action under this section shall serve notice and one copy
of the pleading on the attorney general within thirty days after the action is
filed with the superior court. The notice shall identify the action, the
person, and the person's attorney. Service of the notice does not limit or
otherwise affect the right of the state to maintain an action under this section
or intervene in a pending action nor does it authorize the person to name the
state or the attorney general as a party to the action.
(11) Except in cases filed by a county prosecuting attorney, the attorney
general may, upon timely application, intervene in any civil action or
proceeding brought under this section if the attorney general certifies that in
the attorney general's opinion the action is of special public importance. Upon
intervention, the attorney general may assert any available claim and is
entitled to the same relief as if the attorney general had instituted a separate
action.
(12) In addition to the attorney general's right to intervene as a party
in any action under this section, the attorney general may appear as amicus
curiae in any proceeding in which a claim under this section has been asserted
or in which a court is interpreting RCW 9A.82.010, 9A.82.080, 9A.82.090,
9A.82.110, or 9A.82.120, or this section.
(13) A private civil action under this section does not limit any other
civil or criminal action under this chapter or any other provision. Private
civil remedies provided under this section are supplemental and not mutually
exclusive.
(14) Upon motion by the defendant, the court may authorize the sale or
transfer of assets subject to an order or lien authorized by this chapter for
the purpose of paying actual attorney's fees and costs of defense. The motion
shall specify the assets for which sale or transfer is sought and shall be
accompanied by the defendant's sworn statement that the defendant has no other
assets available for such purposes. No order authorizing such sale or transfer
may be entered unless the court finds that the assets involved are not subject
to possible forfeiture under RCW 9A.82.100(4)(f). Prior to disposition of the
motion, the court shall notify the state of the assets sought to be sold or
transferred and shall hear argument on the issue of whether the assets are
subject to forfeiture under RCW 9A.82.100(4)(f). Such a motion may be made from
time to time and shall be heard by the court on an expedited basis.
(15) In an action brought under subsection (1)(a) and (b)(i) of this
section, either party has the right to a jury trial.
Sec. 8. RCW 9A.82.120 and 2003 c 267 s 7 are each amended to read as
follows:
(1) The state, upon filing a criminal action under RCW 9A.82.060 or
9A.82.080 or for an offense defined in RCW 9A.40.100, {+ or an offense,
including an anticipatory or completed offense, or a lawfully obtained and
otherwise admissible confession to have completed an offense, that is defined
in chapter 9A.-- RCW (sections 1 through 4 of this act), whether or not
committed for financial gain, +} or a civil action under RCW 9A.82.100, may file
in accordance with this section a criminal profiteering lien. A filing fee or
other charge is not required for filing a criminal profiteering lien.
(2) A criminal profiteering lien shall be signed by the attorney general
or the county prosecuting attorney representing the state in the action and
shall set forth the following information:
(a) The name of the defendant whose property or other interests are to be
subject to the lien;
(b) In the discretion of the attorney general or county prosecuting
attorney filing the lien, any aliases or fictitious names of the defendant named
in the lien;
(c) If known to the attorney general or county prosecuting attorney filing
the lien, the present residence or principal place of business of the person
named in the lien;
(d) A reference to the proceeding pursuant to which the lien is filed,
including the name of the court, the title of the action, and the court's file
number for the proceeding;
(e) The name and address of the attorney representing the state in the
proceeding pursuant to which the lien is filed;
(f) A statement that the notice is being filed pursuant to this section;
(g) The amount that the state claims in the action or, with respect to
property or other interests that the state has requested forfeiture to the state
or county, a description of the property or interests sought to be paid or
forfeited;
(h) If known to the attorney general or county prosecuting attorney filing
the lien, a description of property that is subject to forfeiture to the state
or property in which the defendant has an interest that is available to satisfy
a judgment entered in favor of the state; and
(i) Such other information as the attorney general or county prosecuting
attorney filing the lien deems appropriate.
(3) The attorney general or the county prosecuting attorney filing the lien
may amend a lien filed under this section at any time by filing an amended
criminal profiteering lien in accordance with this section that identifies the
prior lien amended.
(4) The attorney general or the county prosecuting attorney filing the lien
shall, as soon as practical after filing a criminal profiteering lien, furnish
to any person named in the lien a notice of the filing of the lien. Failure to
furnish notice under this subsection does not invalidate or otherwise affect a
criminal profiteering lien filed in accordance with this section.
(5)(a) A criminal profiteering lien is perfected against interests in
personal property in the same manner as a security interest in like property
pursuant to RCW 62A.9A-301 through 62A.9A-316 or as otherwise required to
perfect a security interest in like property under applicable law. In the case
of perfection by filing, the state shall file, in lieu of a financing statement
in the form prescribed by RCW 62A.9A-502, a notice of lien in substantially the
following form:
NOTICE OF LIEN
Pursuant to RCW 9A.82.120, the state of
Washington claims a criminal profiteering lien on all real
and personal property of:
Name: . . . . . . . . Address:
State of Washington
. . . . . . . . . . . . . . . By (authorized signature)
On receipt of such a notice from the state, a filing officer shall, without
payment of filing fee, file and index the notice as if it were a financing
statement naming the state as secured party and the defendant as debtor.
(b) A criminal profiteering lien is perfected against interests in real
property by filing the lien in the office where a mortgage on the real estate
would be filed or recorded. The filing officer shall file and index the
criminal profiteering lien, without payment of a filing fee, in the same manner
as a mortgage.
(6) The filing of a criminal profiteering lien in accordance with this
section creates a lien in favor of the state in:
(a) Any interest of the defendant, in real property situated in the county
in which the lien is filed, then maintained, or thereafter acquired in the name
of the defendant identified in the lien;
(b) Any interest of the defendant, in personal property situated in this
state, then maintained or thereafter acquired in the name of the defendant
identified in the lien; and
(c) Any property identified in the lien to the extent of the defendant's
interest therein.
(7) The lien created in favor of the state in accordance with this section,
when filed or otherwise perfected as provided in subsection (5) of this section,
has, with respect to any of the property described in subsection (6) of this
section, the same priority determined pursuant to the laws of this state as a
mortgage or security interest given for value (but not a purchase money security
interest) and perfected in the same manner with respect to such property; except
that any lien perfected pursuant to Title 60 RCW by any person who, in the
ordinary course of his or her business, furnishes labor, services, or materials,
or rents, leases, or otherwise supplies equipment, without knowledge of the
criminal profiteering lien, is superior to the criminal profiteering lien.
(8) Upon entry of judgment in favor of the state, the state may proceed to
execute thereon as in the case of any other judgment, except that in order to
preserve the state's lien priority as provided in this section the state shall,
in addition to such other notice as is required by law, give at least thirty
days' notice of the execution to any person possessing at the time the notice
is given, an interest recorded subsequent to the date the state's lien was
perfected.
(9) Upon the entry of a final judgment in favor of the state providing for
forfeiture of property to the state, the title of the state to the property:
(a) In the case of real property or a beneficial interest in real property,
relates back to the date of filing the criminal profiteering lien or, if no
criminal profiteering lien is filed, then to the date of recording of the final
judgment or the abstract thereof; or
(b) In the case of personal property or a beneficial interest in personal
property, relates back to the date the personal property was seized by the
state, or the date of filing of a criminal profiteering lien in accordance with
this section, whichever is earlier, but if the property was not seized and no
criminal profiteering lien was filed then to the date the final judgment was
filed with the department of licensing and, if the personal property is an
aircraft, with the federal aviation administration.
(10) This section does not limit the right of the state to obtain any order
or injunction, receivership, writ, attachment, garnishment, or other remedy
authorized under RCW 9A.82.100 or appropriate to protect the interests of the
state or available under other applicable law.
(11) In a civil or criminal action under this chapter, the superior court
shall provide for the protection of bona fide interests in property, including
community property, subject to liens of persons who were not involved in the
violation of this chapter, except to the extent that such interests or property
were acquired or used in such a way as to be subject to forfeiture pursuant to
RCW 9A.82.100(4)(f).
Sec. 9. RCW 9.94A.515 and 2003 c 335 s 5, 2003 c 283 s 33, 2003 c 267 s
3, 2003 c 250 s 14, 2003 c 119 s 8, 2003 c 53 s 56, and 2003 c 52 s 4 are each
reenacted and amended to read as follows:
TABLE 2 CRIMES INCLUDED WITHIN
EACH SERIOUSNESS LEVEL XVI Aggravated Murder 1 (RCW
10.95.020) XV Homicide by abuse (RCW 9A.32.055) Malicious explosion 1 (RCW
70.74.280(1)) Murder 1 (RCW 9A.32.030) XIV Murder 2 (RCW 9A.32.050) Trafficking 1 (RCW 9A.40.100(1)) XIII Malicious explosion 2 (RCW
70.74.280(2)) Malicious placement of an explosive 1
(RCW 70.74.270(1)) XII Assault 1 (RCW 9A.36.011) Assault of a Child 1 (RCW
9A.36.120) Malicious placement of an imitation
device 1 (RCW 70.74.272(1)(a)) Rape 1 (RCW 9A.44.040) Rape of a Child 1 (RCW 9A.44.073) Trafficking 2 (RCW 9A.40.100(2)) XI Manslaughter 1 (RCW 9A.32.060) Rape 2 (RCW 9A.44.050) Rape of a Child 2 (RCW 9A.44.076) X Child Molestation 1 (RCW
9A.44.083) Indecent Liberties (with forcible
compulsion) (RCW
9A.44.100(1)(a)) Kidnapping 1 (RCW 9A.40.020) Leading Organized Crime (RCW
9A.82.060(1)(a)) Malicious explosion 3 (RCW
70.74.280(3)) Sexually Violent Predator Escape
(RCW 9A.76.115) IX Assault of a Child 2 (RCW
9A.36.130) Explosive devices prohibited (RCW
70.74.180) Hit and Run--Death (RCW
46.52.020(4)(a)) Homicide by Watercraft, by being
under the influence of
intoxicating liquor or any drug
(RCW 79A.60.050) Inciting Criminal Profiteering (RCW
9A.82.060(1)(b)) Malicious placement of an explosive 2
(RCW 70.74.270(2)) Robbery 1 (RCW 9A.56.200) Sexual Exploitation (RCW
9.68A.040) Vehicular Homicide, by being under
the influence of intoxicating
liquor or any drug (RCW
46.61.520) VIII Arson 1 (RCW 9A.48.020) Homicide by Watercraft, by the
operation of any vessel in a
reckless manner (RCW
79A.60.050) Manslaughter 2 (RCW 9A.32.070) Promoting Prostitution 1 (RCW
9A.88.070) Theft of Ammonia (RCW 69.55.010) Vehicular Homicide, by the operation
of any vehicle in a reckless
manner (RCW 46.61.520) VII Burglary 1 (RCW 9A.52.020) Child Molestation 2 (RCW
9A.44.086) Civil Disorder Training (RCW
9A.48.120) Dealing in depictions of minor
engaged in sexually explicit
conduct (RCW 9.68A.050) Drive-by Shooting (RCW 9A.36.045) Homicide by Watercraft, by disregard
for the safety of others (RCW
79A.60.050) Indecent Liberties (without forcible
compulsion) (RCW 9A.44.100(1)
(b) and (c)) Introducing Contraband 1 (RCW
9A.76.140) Malicious placement of an explosive 3
(RCW 70.74.270(3)) Sending, bringing into state depictions
of minor engaged in sexually
explicit conduct (RCW
9.68A.060) Unlawful Possession of a Firearm in
the first degree (RCW
9.41.040(1)) Use of a Machine Gun in
Commission of a Felony (RCW
9.41.225) Vehicular Homicide, by disregard for
the safety of others (RCW
46.61.520) VI {+ Animal or Ecological Terrorism,
Resulting in Bodily Harm (section
3(3) of this act) +} Bail Jumping with Murder 1 (RCW
9A.76.170(3)(a)) Bribery (RCW 9A.68.010) Incest 1 (RCW 9A.64.020(1)) Intimidating a Judge (RCW
9A.72.160) Intimidating a Juror/Witness (RCW
9A.72.110, 9A.72.130) Malicious placement of an imitation
device 2 (RCW 70.74.272(1)(b)) Rape of a Child 3 (RCW 9A.44.079) Theft of a Firearm (RCW 9A.56.300) Unlawful Storage of Ammonia (RCW
69.55.020) V Abandonment of dependent person 1
(RCW 9A.42.060) Advancing money or property for
extortionate extension of credit
(RCW 9A.82.030) Bail Jumping with class A Felony
(RCW 9A.76.170(3)(b)) Child Molestation 3 (RCW
9A.44.089) Criminal Mistreatment 1 (RCW
9A.42.020) Custodial Sexual Misconduct 1 (RCW
9A.44.160) Domestic Violence Court Order
Violation (RCW 10.99.040,
10.99.050, 26.09.300,
26.10.220, 26.26.138,
26.50.110, 26.52.070, or
74.34.145) Extortion 1 (RCW 9A.56.120) Extortionate Extension of Credit
(RCW 9A.82.020) Extortionate Means to Collect
Extensions of Credit (RCW
9A.82.040) Incest 2 (RCW 9A.64.020(2)) Kidnapping 2 (RCW 9A.40.030) Perjury 1 (RCW 9A.72.020) Persistent prison misbehavior (RCW
9.94.070) Possession of a Stolen Firearm (RCW
9A.56.310) Rape 3 (RCW 9A.44.060) Rendering Criminal Assistance 1
(RCW 9A.76.070) Sexual Misconduct with a Minor 1
(RCW 9A.44.093) Sexually Violating Human Remains
(RCW 9A.44.105) Stalking (RCW 9A.46.110) Taking Motor Vehicle Without
Permission 1 (RCW 9A.56.070) IV Arson 2 (RCW 9A.48.030) Assault 2 (RCW 9A.36.021) Assault by Watercraft (RCW
79A.60.060) Bribing a Witness/Bribe Received by
Witness (RCW 9A.72.090,
9A.72.100) Cheating 1 (RCW 9.46.1961) Commercial Bribery (RCW
9A.68.060) Counterfeiting (RCW 9.16.035(4)) Endangerment with a Controlled
Substance (RCW 9A.42.100) Escape 1 (RCW 9A.76.110) Hit and Run--Injury (RCW
46.52.020(4)(b)) Hit and Run with Vessel--Injury
Accident (RCW 79A.60.200(3)) Identity Theft 1 (RCW 9.35.020(2)) Indecent Exposure to Person Under
Age Fourteen (subsequent sex
offense) (RCW 9A.88.010) Influencing Outcome of Sporting
Event (RCW 9A.82.070) Malicious Harassment (RCW
9A.36.080) Residential Burglary (RCW
9A.52.025) Robbery 2 (RCW 9A.56.210) Theft of Livestock 1 (RCW
9A.56.080) Threats to Bomb (RCW 9.61.160) Trafficking in Stolen Property 1
(RCW 9A.82.050) Unlawful factoring of a credit card or
payment card transaction (RCW
9A.56.290(4)(b)) Unlawful transaction of health
coverage as a health care service
contractor (RCW 48.44.016(3)) Unlawful transaction of health
coverage as a health maintenance
organization (RCW 48.46.033(3)) Unlawful transaction of insurance
business (RCW 48.15.023(3)) Unlicensed practice as an insurance
professional (RCW 48.17.063(3)) Use of Proceeds of Criminal
Profiteering (RCW 9A.82.080 (1)
and (2)) Vehicular Assault, by being under the
influence of intoxicating liquor or
any drug, or by the operation or
driving of a vehicle in a reckless
manner (RCW 46.61.522) Willful Failure to Return from
Furlough (RCW 72.66.060) III Abandonment of dependent person 2
(RCW 9A.42.070) Assault 3 (RCW 9A.36.031) Assault of a Child 3 (RCW
9A.36.140) Bail Jumping with class B or C
Felony (RCW 9A.76.170(3)(c)) Burglary 2 (RCW 9A.52.030) Communication with a Minor for
Immoral Purposes (RCW
9.68A.090) Criminal Gang Intimidation (RCW
9A.46.120) Criminal Mistreatment 2 (RCW
9A.42.030) Custodial Assault (RCW 9A.36.100) Escape 2 (RCW 9A.76.120) Extortion 2 (RCW 9A.56.130) Harassment (RCW 9A.46.020) Intimidating a Public Servant (RCW
9A.76.180) Introducing Contraband 2 (RCW
9A.76.150) Malicious Injury to Railroad Property
(RCW 81.60.070) Patronizing a Juvenile Prostitute
(RCW 9.68A.100) Perjury 2 (RCW 9A.72.030) Possession of Incendiary Device
(RCW 9.40.120) Possession of Machine Gun or Short-
Barreled Shotgun or Rifle (RCW
9.41.190) Promoting Prostitution 2 (RCW
9A.88.080) Securities Act violation (RCW
21.20.400) Tampering with a Witness (RCW
9A.72.120) Telephone Harassment (subsequent
conviction or threat of death)
(RCW 9.61.230(2)) Theft of Livestock 2 (RCW
9A.56.083) Trafficking in Stolen Property 2
(RCW 9A.82.055) Unlawful Imprisonment (RCW
9A.40.040) Unlawful possession of firearm in the
second degree (RCW
9.41.040(2)) Vehicular Assault, by the operation or
driving of a vehicle with
disregard for the safety of others
(RCW 46.61.522) Willful Failure to Return from Work
Release (RCW 72.65.070) II Computer Trespass 1 (RCW
9A.52.110) Counterfeiting (RCW 9.16.035(3)) Escape from Community Custody
(RCW 72.09.310) Health Care False Claims (RCW
48.80.030) Identity Theft 2 (RCW 9.35.020(3)) Improperly Obtaining Financial
Information (RCW 9.35.010) Malicious Mischief 1 (RCW
9A.48.070) Possession of Stolen Property 1
(RCW 9A.56.150) Theft 1 (RCW 9A.56.030) Theft of Rental, Leased, or Lease-
purchased Property (valued at one
thousand five hundred dollars or
more) (RCW 9A.56.096(5)(a)) Trafficking in Insurance Claims
(RCW 48.30A.015) Unlawful factoring of a credit card or
payment card transaction (RCW
9A.56.290(4)(a)) Unlawful Practice of Law (RCW
2.48.180) Unlicensed Practice of a Profession or
Business (RCW 18.130.190(7)) I Attempting to Elude a Pursuing Police
Vehicle (RCW 46.61.024) False Verification for Welfare (RCW
74.08.055) Forgery (RCW 9A.60.020) Fraudulent Creation or Revocation of
a Mental Health Advance
Directive (RCW 9A.60.060) Malicious Mischief 2 (RCW
9A.48.080) Mineral Trespass (RCW 78.44.330) Possession of Stolen Property 2
(RCW 9A.56.160) Reckless Burning 1 (RCW
9A.48.040) Taking Motor Vehicle Without
Permission 2 (RCW 9A.56.075) Theft 2 (RCW 9A.56.040) Theft of Rental, Leased, or Lease-
purchased Property (valued at
two hundred fifty dollars or
more but less than one thousand
five hundred dollars) (RCW
9A.56.096(5)(b)) Transaction of insurance business
beyond the scope of licensure
(RCW 48.17.063(4)) Unlawful Issuance of Checks or
Drafts (RCW 9A.56.060) Unlawful Possession of Fictitious
Identification (RCW 9A.56.320) Unlawful Possession of Instruments of
Financial Fraud (RCW
9A.56.320) Unlawful Possession of Payment
Instruments (RCW 9A.56.320) Unlawful Possession of a Personal
Identification Device (RCW
9A.56.320) Unlawful Production of Payment
Instruments (RCW 9A.56.320) Unlawful Trafficking in Food Stamps
(RCW 9.91.142) Unlawful Use of Food Stamps (RCW
9.91.144) Vehicle Prowl 1 (RCW 9A.52.095)
Sec. 10. RCW 9.94A.535 and 2003 c 267 s 4 are each amended to read as
follows:
The court may impose a sentence outside the standard sentence range for an
offense if it finds, considering the purpose of this chapter, that there are
substantial and compelling reasons justifying an exceptional sentence. Whenever
a sentence outside the standard sentence range is imposed, the court shall set
forth the reasons for its decision in written findings of fact and conclusions
of law. A sentence outside the standard sentence range shall be a determinate
sentence unless it is imposed on an offender sentenced under RCW 9.94A.712. An
exceptional sentence imposed on an offender sentenced under RCW 9.94A.712 shall
be to a minimum term set by the court and a maximum term equal to the statutory
maximum sentence for the offense of conviction under chapter 9A.20 RCW.
If the sentencing court finds that an exceptional sentence outside the
standard sentence range should be imposed, the sentence is subject to review
only as provided for in RCW 9.94A.585(4).
A departure from the standards in RCW 9.94A.589 (1) and (2) governing
whether sentences are to be served consecutively or concurrently is an
exceptional sentence subject to the limitations in this section, and may be
appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through
(6).
The following are illustrative factors which the court may consider in the
exercise of its discretion to impose an exceptional sentence. The following are
illustrative only and are not intended to be exclusive reasons for exceptional
sentences.
(1) Mitigating Circumstances
(a) To a significant degree, the victim was an initiator, willing
participant, aggressor, or provoker of the incident.
(b) Before detection, the defendant compensated, or made a good faith
effort to compensate, the victim of the criminal conduct for any damage or
injury sustained.
(c) The defendant committed the crime under duress, coercion, threat, or
compulsion insufficient to constitute a complete defense but which significantly
affected his or her conduct.
(d) The defendant, with no apparent predisposition to do so, was induced
by others to participate in the crime.
(e) The defendant's capacity to appreciate the wrongfulness of his or her
conduct, or to conform his or her conduct to the requirements of the law, was
significantly impaired. Voluntary use of drugs or alcohol is excluded.
(f) The offense was principally accomplished by another person and the
defendant manifested extreme caution or sincere concern for the safety or well-
being of the victim.
(g) The operation of the multiple offense policy of RCW 9.94A.589 results
in a presumptive sentence that is clearly excessive in light of the purpose of
this chapter, as expressed in RCW 9.94A.010.
(h) The defendant or the defendant's children suffered a continuing pattern
of physical or sexual abuse by the victim of the offense and the offense is a
response to that abuse.
(2) Aggravating Circumstances
(a) The defendant's conduct during the commission of the current offense
manifested deliberate cruelty to the victim.
(b) The defendant knew or should have known that the victim of the current
offense was particularly vulnerable or incapable of resistance due to extreme
youth, advanced age, disability, or ill health.
(c) The current offense was a violent offense, and the defendant knew that
the victim of the current offense was pregnant.
(d) The current offense was a major economic offense or series of offenses,
so identified by a consideration of any of the following factors:
(i) The current offense involved multiple victims or multiple incidents per
victim;
(ii) The current offense involved attempted or actual monetary loss
substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication or
planning or occurred over a lengthy period of time; or
(iv) The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current offense.
(e) The current offense was a major violation of the Uniform Controlled
Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled
substances, which was more onerous than the typical offense of its statutory
definition: The presence of ANY of the following may identify a current offense
as a major VUCSA:
(i) The current offense involved at least three separate transactions in
which controlled substances were sold, transferred, or possessed with intent to
do so;
(ii) The current offense involved an attempted or actual sale or transfer
of controlled substances in quantities substantially larger than for personal
use;
(iii) The current offense involved the manufacture of controlled substances
for use by other parties;
(iv) The circumstances of the current offense reveal the offender to have
occupied a high position in the drug distribution hierarchy;
(v) The current offense involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved a broad geographic
area of disbursement; or
(vi) The offender used his or her position or status to facilitate the
commission of the current offense, including positions of trust, confidence or
fiduciary responsibility (e.g., pharmacist, physician, or other medical
professional).
(f) The current offense included a finding of sexual motivation pursuant
to RCW 9.94A.835.
(g) The offense was part of an ongoing pattern of sexual abuse of the same
victim under the age of eighteen years manifested by multiple incidents over a
prolonged period of time.
(h) The current offense involved domestic violence, as defined in RCW
10.99.020, and one or more of the following was present:
(i) The offense was part of an ongoing pattern of psychological, physical,
or sexual abuse of the victim manifested by multiple incidents over a prolonged
period of time;
(ii) The offense occurred within sight or sound of the victim's or the
offender's minor children under the age of eighteen years; or
(iii) The offender's conduct during the commission of the current offense
manifested deliberate cruelty or intimidation of the victim.
(i) The operation of the multiple offense policy of RCW 9.94A.589 results
in a presumptive sentence that is clearly too lenient in light of the purpose
of this chapter, as expressed in RCW 9.94A.010.
(j) The defendant's prior unscored misdemeanor or prior unscored foreign
criminal history results in a presumptive sentence that is clearly too lenient
in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
(k) The offense resulted in the pregnancy of a child victim of rape.
(l) The defendant knew that the victim of the current offense was a youth
who was not residing with a legal custodian and the defendant established or
promoted the relationship for the primary purpose of victimization.
(m) The offense was committed with the intent to obstruct or impair human
or animal health care or agricultural or forestry research or commercial
production.
(n) The current offense is trafficking in the first degree or trafficking
in the second degree and any victim was a minor at the time of the offense.
{+ (o) The offense was committed in violation of chapter 9A.-- RCW
(sections 1 through 4 of this act) and resulted in the death of a human or the
death or destruction of an animal. +}
{+ NEW SECTION. +} Sec. 11. Sections 1 through 4 of this act constitute
a new chapter in Title 9A RCW.
{+ NEW SECTION. +} Sec. 12. This act takes effect July 1, 2004.
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A number of people have sent me links to pictures of the newly discovered