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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) STATE OF WASHINGTON, ) ) No. 98066-7 Respondent, ) ) v. ) En Banc ) CORY PRATT, ) ) Filed: January 28, 2021 Petitioner. ) ____________________________________)
YU, J.— This case concerns the eligibility criteria of the special sex
offender sentencing alternative (SSOSA), which requires offenders to have “an
established relationship with, or connection to, the victim such that the sole
connection with the victim was not the commission of the crime.” RCW
9.94A.670(2)(e). We are asked to determine whether an offender is eligible for
SSOSA where he and the victim shared a family member in common, but did not
have a direct relationship. We conclude that Cory Pratt was not “connected” to his For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
victim as required by RCW 9.94A.670(2)(e) and is therefore ineligible for a
SSOSA sentence. We affirm the Court of Appeals and remand the case to the trial
court for resentencing.
BACKGROUND
In July 2016, Pratt and his daughter attended his cousin’s birthday party.
Several young girls spent the night after the party, including M.B., the 10-year-old
daughter of Pratt’s aunt’s stepsister. Pratt slept in a backyard tent with the girls.
The next day, M.B. told her grandmother and parents that Pratt had touched her in
the tent. M.B. testified that Pratt touched her arm, her lower back, and rubbed her
crotch. 2 Verbatim Report of Proceedings (VRP) (Oct. 2, 2017) at 152-56. M.B.’s
mother contacted police. In October 2016, Pratt was charged with one count of
child molestation in the first degree. After a two-day bench trial, Pratt was found
guilty of the charge.
Pratt requested a SSOSA sentence pursuant to RCW 9.94A.670. The State
objected, arguing that Pratt was ineligible because he did not have an “established
relationship” with M.B. as required by the statute:
Here, [Pratt] had only met this victim a few hours before the actual crime took place . . . maybe just over 12 hours after he had met her.
So there clearly is not an established relationship.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
3 VRP (Jan. 5, 2018) at 349. Pratt countered that he was eligible for SSOSA
because his connection with M.B. was “easily established” through “familial ties.”
Id. at 353. Pratt elaborated:
[T]his is not a situation where he just showed up at a bus stop to grab the kid or abducted the kid, and that’s the sole connection.
I would argue that the sleepover itself is sufficient to satisfy the statute in that he was there as, you know, a helping adult at this party with his own daughter there, so there’s additional connection to this child other than the crime.
Id. at 354.
The court agreed with Pratt:
[I]t’s very close, tenuous, but there is some connection. They may not have really met, but there is a connection. They knew—he knew of the child. He knew of the parents. There is some time there spent. This was not brought together where he sought out the victim for the purposes of committing the act.
Id. at 360.1 The court sentenced Pratt according to SSOSA, reducing his sentence
from 57 months of confinement to 12 months.
The State appealed Pratt’s sentence. In a published split opinion, the Court
of Appeals reversed the trial court, concluding that Pratt was ineligible for SSOSA.
1 The court’s written findings in support of SSOSA noted, “(1) the Victim’s family is related through marriage with the Defendant’s family, (2) the Defendant knew of the Victim, and had been acquainted with the Victim’s family, (3) the Defendant and the Victim were both invitees to a sleepover party for their mutual family member, to wit: the Defendant’s uncle’s daughter, who is also the victim’s cousin, and (4) that the Victim and Defendant had contact during the course of said party other than the actions that constitute the crime herein.” Clerk's Papers at 99.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
State v. Pratt, 11 Wn. App. 2d 450, 454 P.3d 875 (2019). Pratt filed a petition for
review, which we granted. 195 Wn.2d 1023 (2020).
ANALYSIS
Once a defendant has been convicted of a sex offense, the trial court has the
discretion to impose a SSOSA sentence. State v. Osman, 157 Wn.2d 474, 482, 139
P.3d 334 (2006). However, in order to be eligible for SSOSA, an offender must
meet the statutory criteria. John Doe G v. Dep’t of Corr., 190 Wn.2d 185, 192,
410 P.3d 1156 (2018); RCW 9.94A.670(2). As SSOSA eligibility is a question of
statutory interpretation, our review is de novo. State v. Petterson, 190 Wn.2d 92,
98, 409 P.3d 187 (2018).
Pratt’s eligibility for SSOSA turns on whether he meets the requirement set
forth in RCW 9.94A.670(2)(e):
The offender had an established relationship with, or connection to, the victim such that the sole connection with the victim was not the commission of the crime.
At trial, Pratt testified that he had little interaction with M.B., at most
handing her a marshmallow skewer and asking her name. But Pratt contends that
because there was a familial connection between Pratt’s family and M.B.’s family,
his crime was not the “sole connection” to M.B. The State maintains that Pratt is
ineligible for SSOSA because the legislature did not intend SSOSA to apply to
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
offenders like Pratt, who did not have any recognized relationship with their victim
prior to the molestation.
We agree with the State and affirm the decision of the Court of Appeals.
Our primary duty in statutory interpretation is to ascertain and carry out the
legislature’s intent. State v. Bigsby, 189 Wn.2d 210, 216, 399 P.3d 540 (2017).
We first examine a statute’s plain meaning by construing the words of the statute
itself and giving effect to that plain meaning. State v. Hirschfelder, 170 Wn.2d
536, 543, 242 P.3d 876 (2010). To determine the plain meaning, we review the
text and “‘the context of the statute in which that provision is found, related
provisions, and the statutory scheme as a whole.’” State v. Ervin, 169 Wn.2d 815,
820, 239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d
281 (2005)). “If after this inquiry the statute is susceptible to more than one
reasonable interpretation, it is ambiguous.” State v. Jones, 172 Wn.2d 236, 242,
257 P.3d 616 (2011). We may then turn to statutory construction, relevant case
law, and legislative history to discern legislative intent. Id.
It is unclear from the plain meaning of RCW 9.94A.670(2)(e) what degree
of association is required between an offender and his or her victim. The first
clause of the statute, “[t]he offender had an established relationship with, or
connection to, the victim,” suggests a familiarity between offender and victim that
existed prior to the sexual offense. But the second clause of the statute, “such that
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
the sole connection with the victim was not the commission of the crime,” taken
literally, seems to widen the scope of possible associations to any two people with
some contact prior to the sexual offense.
These competing clauses resulted in a split decision in the Court of Appeals.
The majority emphasized the first clause, holding that the word “established”
modified both “relationship” and “connection,” and that Pratt’s minimal contacts
with M.B. during the party—giving M.B. a marshmallow skewer and asking her
name—were not sufficient to qualify as an established relationship or connection.
Pratt, 11 Wn. App. 2d at 459-460. The dissent, however, focused on the broader
language in the second clause, interpreting the “sole connection” to mean any
connection outside of the assault:
Therefore, the real question is not whether the connection between the offender and the victim rose to a certain level. The question is whether the sole connection between the offender and the victim was the commission of the crime.
Pratt, 11 Wn. App. 2d at 465 (Maxa, C.J., dissenting).
RCW 9.94A.670(2)(e)’s first and second clauses do appear to be at odds.
But “‘[s]tatutes must be interpreted and construed so that all the language used is
given effect, with no portion rendered meaningless or superfluous.’” State v.
Roggenkamp, 153 Wn.2d 614, 624, 106 P.3d 196 (2005) (internal quotation marks
omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)).
“Established relationship” would be superfluous if any “connection” between
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
offender and victim made an offender eligible for SSOSA, so long as the crime
was not the “sole connection” between the two. Similarly, we cannot assume the
second clause carries no meaning. As we must assume that the legislature intended
both clauses of RCW 9.94A.670(2)(e) to carry legal weight, the statute is
ambiguous.
Washington courts have not yet defined the requisite connection between an
offender and victim that triggers SSOSA eligibility. 2 Some cases touch on the
issue tangentially, but none directly address it. For instance, in State v. Landsiedel,
the Court of Appeals concluded that “victim” in RCW 9.94A.670(2)(e) refers to
the direct victim of the sexual crime, not a third party impacted by the offender’s
crimes. 165 Wn. App. 886, 892, 269 P.3d 347 (2012). In State v. Willhoite, the
Court of Appeals held that an offender convicted of possession of child
pornography was ineligible for SSOSA because
under the plain language of the statute . . . the defendant must have had an established relationship with the victim. Here, it is undisputed that Willhoite did not have a relationship with any of the victims. He was therefore ineligible for a SSOSA.
165 Wn. App. 911, 915, 268 P.3d 994 (2012). Notably, the Court of Appeals
summarized RCW 9.94A.670(2)(e) entirely by the “established relationship”
2 The Court of Appeals recently affirmed its holding in Pratt. State v. Spaulding, No. 53253-1-II, slip op. at 5-6 (Wash. Ct. App. Nov. 17, 2020) http://www.courts.wa.gov/opinions/pdf/D2%2053253-1-II%20Published%20Opinion.pdf.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
language. But as Willhoite had never met his victims, it was unnecessary for that
court to interpret any nuance in RCW 9.94A.670(2)(e). As courts have not yet
resolved the ambiguity of RCW 9.94A.670(2)(e), we next review legislative
history.
The state legislature enacted SSOSA in 1984 to permit trial courts to
suspend the sentences for first time offenders in exchange for treatment and
supervision. SUBSTITUTE H.B. 1247, 48th Leg., Reg. Sess. (Wash. 1984). The
legislature developed the sentencing alternative with recommendations from the
Sentencing Guidelines Commission, which in turn relied on input from treatment
professionals and victim advocates. The commission reported to the legislature
that treating offenders was a “major concern” for victims and their families
because in many cases
sex offenders commit their crimes against children related to them by blood or marriage. Family friends are also common offenders in these type of crimes. Given these relationships, many victims and their families want to see the offender receive help rather than a prison sentence.
SENTENCING GUIDELINES COMM’N, REPORT TO THE LEGISLATURE 2 (Feb. 1984).
The commission also noted that “[w]ithout the cooperation of victims, the criminal
justice system is ineffective in responding to sexual abuse; the effect of a
sentencing policy on victims’ attitudes toward reporting is therefore critical.” Id.
at 2-3. However, SSOSA did not explicitly require a relationship between offender
and victim until 2004, with the adoption of RCW 9.94A.670(2)(e).
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
During the 2004 session, the legislature amended SSOSA in order to
“further increase the protection of children from victimization by sex offenders.”
ENGROSSED SUBSTITUTE H.B. 2400, 58th Leg., Reg. Sess. (Wash. 2004).
Testimony from the legislative hearings emphasized that “The majority of sex
crimes against children are committed by people who have a relationship with the
child” or occur in “the family context.” H.B. REP. ON ENGROSSED SUBSTITUTE
H.B. 2400, at 7-8, 58th Leg., Reg. Sess. (Wash.2004). These relationships between
offender and victim make it less likely that abuse would be reported by victims or
caregivers as “[f]amily members are often reluctant to report sex offenses if they
feel the perpetrator will get a lengthy prison sentence.” Id. at 8. The legislative
report reiterated that SSOSA was designed to incentivize the reporting of abusers
despite these close relationships:
SSOSA has been an important and narrowly used option for victims. The substitute puts great weight on victim input and narrows the pool of eligible persons.
. . . For those kids and their parents, you have to have the SSOSA option available. If the treatment option is eliminated, people will go underground.
....
. . . Without the treatment program, there will be many families that do not disclose the criminal behavior.
Id. at 7-8.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
Aside from adding RCW 9.94A.670(2)(e)’s requirement for an “established
relationship” or “connection” between an offender and victim, the 2004 legislature
also added additional SSOSA amendments to acknowledge that SSOSA victims,
because of their relationships with their abusers, would have an investment in the
offender’s sentencing and treatment. The legislature provided multiple
opportunities for victims to address the court. First, at the point of sentencing,
[t]he court shall give great weight to the victim’s opinion whether the offender should receive a treatment disposition under this section. If the sentence imposed is contrary to the victim’s opinion, the court shall enter written findings stating its reasons for imposing the treatment disposition.
RCW 9.94A.670(4). And then, once a year throughout an offender’s treatment,
[t]he court shall conduct a hearing on the offender’s progress in treatment at least once a year. At least fourteen days prior to the hearing, notice of the hearing shall be given to the victim. The victim shall be given the opportunity to make statements to the court regarding the offender’s supervision and treatment.
RCW 9.94A.670(8)(b). And once more, at the termination of treatment,
[a]t least fourteen days prior to the treatment termination hearing, notice of the hearing shall be given to the victim. The victim shall be given the opportunity to make statements to the court regarding the offender’s supervision and treatment.
RCW 9.94A.670(9).
The legislature intended SSOSA’s purpose to be a narrow tool in
circumstances where a victim would be reluctant to report abuse and unwilling to
participate in prosecution without the promise of a shortened sentence and
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
treatment for an offender. The ongoing involvement of a victim in his or her
abuser’s supervision and treatment makes sense only where the legislature believed
a victim would be personally invested in their abuser’s confinement and
rehabilitation. The legislature seems to have used the word “connection” in RCW
9.94A.670(2)(e) to mean two people who have a direct connection between one
another, rather than mere acquaintances who happen to share any number of
overlapping colleagues, friends, or relatives. SSOSA is limited to circumstances in
which abuse is likely to go underreported, such as where an abuser has a
protective, caretaking, or intimate association with their victim.
We conclude that the trial court’s findings do not support a conclusion of
law that Pratt had the requisite “established relationship with, or connection to”
M.B. The trial court found that Pratt and M.B. “may not have really met,” that
they were, “in essence, almost total strangers. There was no relationship. Short-
term, just meeting at this party [the day] before.” 3 VRP (Jan. 5, 2018) at 360; 2
VRP (Oct. 3, 2017) at 311. Testimony at trial indicated that Pratt did not know
M.B.’s last name. M.B. could not recall whether she had ever spoken with Pratt
before the July 2016 incident, and both of M.B.’s parents testified that they never
met Pratt and did not believe that Pratt had ever interacted with their daughter.
The only person that testified at trial that M.B. and Pratt had definitely met before
conceded that “[Pratt and M.B.] may have said hi and bye, you know, but I don’t
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
think they’ve ever really had too much of a conversation with each other.” 1 VRP
(Sept. 28, 2017) at 53-54. The trial court found that any interactions between Pratt
and M.B. had been “brief passings.” 2 VRP (Oct. 3, 2017) at 308.
Though Pratt and M.B. share an aunt by marriage, M.B. and Pratt’s “brief
passings” do not reach RCW 9.94A.670(2)(e)’s threshold for an “established
relationship” or “connection.” The legislature could not have intended that
handing a child a marshmallow skewer hours before molesting them qualified as a
“connection” required for a reduced prison sentence and treatment. Rather, the
legislature intended SSOSA to be a narrow incentivizing mechanism to compel
victims and their families to disclose abuse to law enforcement and cooperate with
investigations despite a familiar relationship with the offender. Here, as the trial
court found, there was simply no relationship between Pratt and M.B. prior to the
commission of the crime. The “sole connection” between Pratt and M.B. was
Pratt’s act of molestation.
CONCLUSION
We hold that Pratt is statutorily ineligible for a SSOSA sentence.
Accordingly, we affirm the Court of Appeals and remand to the trial court for
resentencing.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt, No. 98066-7
WE CONCUR:
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7
No. 98066-7
GORDON McCLOUD, J. (dissenting)—“[W]here there is ambiguity in a
criminal statute, doubts are resolved in favor of the defendant.” United States v.
Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971). This principle,
known as the rule of lenity or strict construction, is fundamental to our tradition of
criminal justice. See id.; United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5
L. Ed. 37 (1820) (“The rule that penal laws are to be construed strictly, is perhaps
not much less old than construction itself.”). The rule of lenity safeguards the vital
principles of notice, due process, and fundamental fairness by requiring the State to
speak clearly when crafting criminal statutes: it is “rooted in the concern of the law
for individual rights, and in the belief that fair warning should be accorded as to
what conduct is criminal and punishable.” Huddleston v. United States, 415 U.S.
814, 831, 94 S. Ct. 1262, 39 L. Ed. 2d 782 (1974) (citing Wiltberger, 18 U.S. at 95;
Bass, 404 U.S. at 348). It reflects “‘the instinctive distaste against men languishing
in prison unless the lawmaker has clearly said they should.’” Bass, 404 U.S. at 348
(quoting HENRY J. FRIENDLY, BENCHMARKS 209 (1967)).
1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7 (Gordon McCloud, J., dissenting)
This court has repeatedly affirmed the rule’s vitality. State v. Evans, 177
Wn.2d 186, 192-93, 298 P.3d 724 (2013); State v. Jacobs, 154 Wn.2d 596, 601,
115 P.3d 281 (2005); In re Pers. Restraint of Hopkins, 137 Wn.2d 897, 901, 976
P.2d 616 (1999); In re Post Sentencing Review of Charles, 135 Wn.2d 239, 250
n.4, 955 P.2d 798 (1998); State v. Wilson, 125 Wn.2d 212, 216-17, 883 P.2d 320
(1994); State v. Hornaday, 105 Wn.2d 120, 127, 713 P.2d 71 (1986). But there is
tension in this court’s decisions regarding when in the interpretive process the rule
must be applied. Sometimes we have described the rule of lenity as a tool of last
resort, applying it only once other interpretive tools, such as examination of
legislative history, fail to resolve the statute’s ambiguity. E.g., Evans, 177 Wn.2d
at 194; Charles, 135 Wn.2d at 250 n.4 (“We have explained that the rule only
applies when a penal statute is ambiguous and legislative intent is insufficient to
clarify the ambiguity.”); In re Pers. Restraint of Sietz, 124 Wn.2d 645, 652, 880
P.2d 34 (1994).
But elsewhere, we have treated the rule of lenity as the first tool of statutory
construction that we must turn to when faced with an ambiguous penal statute.
State v. Weatherwax, 188 Wn.2d 139, 153, 392 P.3d 1054 (2017); State v.
Conover, 183 Wn.2d 706, 712, 355 P.3d 1093 (2015) (“In criminal cases, we apply
the rule of lenity to ambiguous statutes and interpret the statute in the defendant’s
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7 (Gordon McCloud, J., dissenting)
favor.”); Jacobs, 154 Wn.2d at 600-01; In re Pers. Restraint of Greening, 141
Wn.2d 687, 698, 9 P.3d 206 (2000); Hopkins, 137 Wn.2d at 901; State v. Roberts,
117 Wn.2d 576, 586, 817 P.2d 855 (1991). Though we have noted this
inconsistency in our approach to the rule’s application, we have never definitively
resolved it. E.g., Southwick, Inc. v. State, 191 Wn.2d 689, 710, 426 P.3d 693
(2018) (Gordon McCloud, J., dissenting); State v. Coria, 146 Wn.2d 631, 654, 48
P.3d 980 (2002) (Sanders, J., dissenting).
In Cory Pratt’s case, the order in which the rule of lenity applies is outcome-
determinative. As the majority correctly explains, RCW 9.94A.670(e)(2) is
ambiguous: the two clauses of the statute point in different directions. Majority at
6-7. Thus, there are at least two plausible readings of the statute. One reading
would exclude Pratt from the special sexual offender sentencing alternative
(SSOSA) sentencing scheme: focusing on the first clause’s requirement that the
defendant have had at least an “established relationship” with the victim, a
reasonable person could conclude, as the Court of Appeals majority did, that the
minimal contacts Pratt had with the victim were “too attenuated to satisfy the
statutory requirement.” State v. Pratt, 11 Wn. App. 2d 450, 459-60, 454 P.3d 875
(2019), review granted, 195 Wn.2d 1023 (2020). But the other plausible reading
would include Pratt in the SSOSA scheme because his family ties to the victim and
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7 (Gordon McCloud, J., dissenting)
his interaction with her prior to the crime, however minimal, make his criminal
contact with the victim not his “sole connection” to her. Pratt, 11 Wn. App. at 465
(Maxa, C.J., dissenting in part).
Upon identifying the ambiguity in the statute, the majority turns immediately
to legislative history to seek clarity. Majority at 8. The majority’s analysis of the
legislative history is correct; as regards this statute, the legislature’s intent seems
particularly clear. See majority at 9. Thus, if the rule of lenity is available only as a
last resort to resolve ambiguities that remain after consulting all other interpretive
tools, the majority’s conclusion is correct: Pratt is not entitled to the lower SSOSA
sentence. But if the rule of lenity applies first, we would select the more lenient
reading of the ambiguous statute and Pratt would be entitled to the benefits of
SSOSA.
I would resolve the tension in our law by applying the rule of lenity first
when construing ambiguous penal statutes. Notice is “the first essential of due
process of law.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70
L. Ed. 322 (1926) (citing Int’l Harvester Co. v. Kentucky, 234 U.S. 216, 221, 34 S.
S. Ct. 853, 58 L. Ed. 1284 (1914); Collins v. Kentucky, 234 U.S. 634, 638, 34 S.
Ct. 924, 58 L. Ed. 1510 (1914)). And lenity’s key function as a safeguard of this
due process requirement has long been recognized. See Bass, 404 U.S. at 348;
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7 (Gordon McCloud, J., dissenting)
McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816 (1931)
(fair notice requires clarity in the criminal law, even considering that “it is not
likely that a criminal will carefully consider the text of the law” before engaging in
unlawful activity); Hornaday, 105 Wn.2d at 127 (the rule of lenity is grounded in
the constitutional requirement of “fundamental fairness”); In re Carson, 84 Wn.2d
969, 973, 530 P.2d 331 (1975) (explaining that “when a deprivation of liberty is
involved, statutes should be strictly construed” (citing Weber v. Doust, 81 Wash.
668, 143 P. 148 (1914), vacated, 84 Wash. 330, 146 P. 623 (1915)). The rule also
reflects the bedrock principle of separation of powers—specifically that “because
of the seriousness of criminal penalties, and because criminal punishment usually
represents the moral condemnation of the community, legislatures and not courts
should define criminal activity.” Bass, 404 U.S. at 348; see also Hopkins, 137
Wn.2d at 901 (describing the rule of lenity as “a basic and required limitation on a
court’s power of statutory interpretation whenever the meaning of a criminal
statute is not plain”). It serves as “a check on governmental power when the basis
for government’s assertion of that power is questionable or ambiguous.”
Southwick, Inc., 191 Wn.2d at 703 (Gordon McCloud, J., dissenting). In this way,
the rule of lenity encourages legislative accountability and precision in statutory
drafting—it pushes the legislature to make its intent clearer in the text of the
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7 (Gordon McCloud, J., dissenting)
statutes it passes. See United States v. R.L.C., 503 U.S. 291, 308-09, 112 S. Ct.
1329, 117 L. Ed. 2d 559 (1992) (Scalia, J., concurring); Zachary Price, The Rule of
Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 940-41 (2004).
The rule of lenity best protects these foundational values when, faced with
an ambiguous criminal statute, we apply it first—before turning to legislative
history or other interpretive tools. We followed this approach in Weatherwax and
Conover, unanimous opinions that both dealt with questions of interpretation of
ambiguous sentencing statutes. Weatherwax, 188 Wn.2d at 142; Conover, 183
Wn.2d at 711. I would follow the same approach here. Because it is ambiguous as
to what type of “relationship” or “connection” makes a defendant statutorily
entitled to the benefits of SSOSA’s more lenient sentencing scheme, RCW
9.94A.670(e)(2) failed to provide “fair warning” of the consequences of Pratt’s
crime. McBoyle, 283 U.S. at 27. There are two plausible readings of the text of the
statute; one would include Pratt within the ambit of SSOSA. Accordingly, the
principles of fairness, notice, and due process animating the rule of lenity require
that Pratt receive the benefit of the more lenient reading of the statute.
Weatherwax, 188 Wn.2d at 155-56.
I therefore respectfully dissent.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Pratt (Cory), No. 98066-7 (Gordon McCloud, J., dissenting)