Published January, 2001

State v. Ferguson, 15 P.3d 1271 (Wash. 2001)

Ferguson was convicted of second degree assault and sentenced to 120 months imprisonment under former WASH. REV. CODE ANN. § 9A.36.021(1)(e) (1988) after he allegedly engaged in unprotected penile-vaginal sex with the complainant. At issue in the case is whether Ferguson acted with "deliberate cruelty" to justify the 120 month sentence, a departure far outside of the standard sentencing range of 53-70 months.

"Deliberate cruelty" is defined as "behavior 'not usually associated with the commission of the offense in question,'" and alternatively, as "gratuitous violence or other conduct which inflicts physical, psychological, or emotional pain as an end in itself." If the defendant had a more culpable mental state than that required by the statute the court may find that she/he acted with deliberate cruelty.

On appeal, the Washington Supreme Court reversed Ferguson's sentence and remanded his case for re-sentencing within the standard 53-70 month range. The court reasoned that under Washington law, a judge must have a "substantial and compelling" reason for imposing a sentence outside of the standard sentencing range and the factors inherent in a crime may not form the basis for imposing an exceptional sentence. The Legislature had already set a standard sentencing range for a conviction for second degree assault and established that an intent to do bodily harm was not only an element of the crime but also considered in the sentencing provision. Because the court found that intent to do bodily harm implicitly contains elements of "deliberate cruelty" the trial court had no option for an additional finding of deliberate cruelty for the enhanced sentence.

The court distinguished its conclusion from the finding is State v. Farmer, 805 P.2d 200 (Wash. 1991), where the HIV-positive defendant was found to have acted with deliberate cruelty and received an enhanced sentence for his conviction of sexual exploitation of a minor and patronizing a juvenile prostitute. The court in Farmer found that the defendant's willingness to expose minors to HIV without regard for their welfare constituted a deliberate, cruel, and malicious act that could have resulted in the minors' deaths and justified an enhanced sentence. The court distinguished Farmer from Ferguson's conviction finding that, unlike Ferguson, Farmer was convicted of crimes that did not include an element of intent to do bodily harm.

Since this case, Washington has amended its assault statute to make it a class A felony punishable by up 93-318 months in prison if someone acts with the intent to inflict bodily harm through the exposure or transmission of HIV.