“Lustful Disposition” Evidence Held Inadmissible Under ER 404(b)

Inadmissible Evidence (Broadway, Sam S. Shubert Theatre, 1965) | Playbill

In State v. Bartch, the WA Court of Appeals reversed a defendant’s conviction for Indecent Liberties. The trial court mistakenly admitted evidence or prior advances made by the defendant towards the victim a year before the charged sexual assault under ER 404.


In 2018, the alleged victim S.P. and Mr. Bartch were among a group that socialized together several times during the summer. S.P. and Bartch privately communicated every now and then through Snapchat. On one occasion, S.P. sent Bartch a Snapchat of herself sunbathing in a swimsuit with a message asking if he was still with a mutual friend, with the intent of making plans for the evening.

On June 26, 2018, S.P. attended a gathering at Bartch’s house with common friends. Alcohol was involved. Sexual contact allegedly took place. With the assistance of friends, S.P. departed Bartch’s house and reported the alleged sexual assault to police.

Months later, on May 8, 2019, the State charged Bartch with one count of Indecent Liberties. This required the State to prove that S.P. was “incapable of consent by reason of being mentally incapacitated and physically helpless.” Bartch, on the other hand, argued S.P. consented to sexual contact both through flirtatious behavior leading up to the sexual contact in the bedroom, and by expressly consenting.

At trial, the State offered evidence of two prior instances in which Bartch made sexual advances towards S.P. First, the State put on evidence that Bartch made unwanted sexual advances during a party in 2017. Second, later the same night, when the party was “toning down,” Bartch asked S.P. if she wanted to “sleep with him.” S.P. again declined.

At trial, the judge admitted evidence of these other acts under Washington’s “lustful disposition” case law. The jury returned a guilty verdict. Bartch appealed his conviction on grounds that the trial court unlawfully allowed the lustful disposition evidence at trial.


The Court of Appeals said that generally, ER 404(b) prohibits evidence of “other crimes, wrongs, or acts” to prove the character of a person to show the person acted in conformity with that character, that is, propensity.

“But the rule permits evidence of other acts for purposes other than propensity,” said the Court. “Historically, one such purpose was to show “lustful disposition” towards a specific person in sexual assault cases.”

The Court elaborated by saying that Washington decisions have permitted evidence of other acts by the defendant toward the same victim “to demonstrate ‘the lustful inclination of the defendant toward the victim. Apparently, this evidence makes it more probable that the defendant committed the offense charged because it evidences a sexual desire for the particular victim.

Ultimately, the Court of Appeals reasoned that Bartch’s prior advances were dissimilar to the charged conduct and too remote in time. “They are at most only minimally probative that the later conduct that was charged was for the purpose of gratifying sexual desire, and in the best case only cumulatively so,” said the Court.

“The history and nature of the relationship between S.P. and Bartch therefore had a reasonable probability of being of particular significance to the jury. Because the other acts evidence was inadmissible for the purpose for which it was admitted, the State does not show an other, permissible purpose, and there is a reasonable probability the outcome may have been affected, we reverse Bartch’s conviction.” ~WA Court of Appeals

With that, Mr. Bartch’s criminal conviction was reversed.

My opinion? As I’ve said in past reviews of similar cases, it’s difficult to predict what path judges will take on admitting or denying evidence of “lustful disposition.” This term of art has all but been abandoned in recent years. In  State v. Crossgunsthe WA Supreme Court disapproved of the prosecution’s use of the term “lustful disposition” at trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.