Consent Laws
Washington

Consent requires that there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact at the time of the act. Wash. Rev. Code Ann. § 9A.44.010(2).

Yes. Wash. Rev. Code Ann. § 9A.44.010(2). A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person where the victim did not consent to sexual intercourse with the perpetrator or where there is a threat of substantial unlawful harm to property rights of the victim.  Wash. Rev. Code Ann. § 9A.44.060(1).  “Consent” means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. Wash. Rev. Code Ann. § 9A.44.010(2).

16 years old, however, there are exceptions for persons in positions of trust, such as school employees and foster parents. Wash. Rev. Code Ann. §§ 9A.44.093; 9A.44.096.

Yes, in circumstances where an actor has sexual intercourse with a victim, the actor may be guilty of the following crimes depending on the age difference between the victim and actor:

• Rape of a child in the first degree when the victim is less than 12 years old and the perpetrator is at least 24 months older than the victim. Wash. Rev. Code Ann. § 9A.44.073.
• Rape of a child in the second degree when the victim is 12 or 13 years old and the perpetrator is at least 36 months older than the victim. Wash. Rev. Code Ann. § 9A.44.076.
• Rape of a child in the third degree when the victim is 14 or 15 years old and the perpetrator is at least 48 months older than the victim. Wash. Rev. Code Ann. § 9A.44.079.

A person may be guilty of sexual misconduct with a minor in the first degree when:

• (a) the person has, or knowingly causes another person under the age of 18 to have, sexual intercourse with another person who is 16 or 17 years old if the perpetrator is at least 60 months older than the victim, is in a significant relationship (defined below) to the victim, and abuses a supervisory position within that relationship in order to engage in, or cause another person under the age of 18 to engage in, sexual intercourse with the victim;
• (b) the person is a school employee who has, or knowingly causes another person under the age of 18 to have, sexual intercourse with an enrolled student of the school who is 16-21 years old if the employee is at least 60 months older than the student; or
• (c) the person is a foster parent who has, or knowingly causes another person under the age of 18 to have, sexual intercourse with his or her foster child who is at least 16.Wash. Rev. Code Ann. § 9A.44.093.

A person may be guilty of sexual misconduct with a minor in the second degree when:

• (a) the person has, or knowingly causes another person under the age of 18 to have, sexual contact with another person who is 16-17 years old if the perpetrator is at least 60 months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in, or cause another person under the age of 18 to engage in, sexual contact with the victim;
• (b) the person is a school employee who has, or knowingly causes another person under the age of 18 to have, sexual contact with an enrolled student of the school who is 16-21 years old, if the employee is at least 60 months older than the student; or
• (c) the person is a foster parent who has, or knowingly causes another person under the age of 18 to have, sexual contact with his or her foster child who is at least 16. Wash. Rev. Code Ann. § 9A.44.096.

A “significant relationship” means a situation in which the perpetrator is:

• (a) A person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors;
• (b) A person who in the course of his or her employment supervises minors; or
• (c) A person who provides welfare, health or residential assistance, personal care, or organized recreational activities to frail elders or vulnerable adults, including a provider, employee, temporary employee, volunteer, or independent contractor who supplies services to long-term care facilities licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW, but not including a consensual sexual partner. Wash. Rev. Code Ann. § 9A.44.010(15).

Yes, an actor is guilty of rape in the second degree if they have sexual intercourse with a person who is a frail elder or vulnerable adult and the perpetrator (i) has a significant relationship with the victim, or (ii) was providing transportation, within the course of his or her employment, to the victim at the time of the offense. Wash. Rev. Code Ann. § 9A.44.050.

A “frail elder or vulnerable adult” means a person 60 years old or older who has the functional, mental, or physical inability to care for himself or herself and also includes a person who has been placed under a guardianship under RCW 11.130.265 or a conservatorship under RCW 11.130.360, a person over 18 years old who has a developmental disability under chapter 71A.10 RCW, a person admitted to a long-term care facility that is licensed or required to be licensed under chapter 18.20, 18.51, 72.36, or 70.128 RCW, and a person receiving services from a home health, hospice, or home care agency licensed or required to be licensed under chapter 70.127 RCW. Wash. Rev. Code Ann. § 9A.44.010(4).

Yes, an actor is guilty of rape in the second degree if they have sexual intercourse with a person who incapable of consent by reason of being mentally incapacitated. Wash. Rev. Code Ann. § 9A.44.050.

A person who is unable to understand the nature or consequences of sexual intercourse at the time of the offense, whether that condition is produced by illness, defect, the influence of a substance or from some other cause, is “mentally incapacitated.” Wash. Rev. Code Ann. § 9A.44.010(7).

In any prosecution which lack of consent is based on solely upon the victim’s mental incapacity or upon the victim’s being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Wash. Rev. Code Ann. §§ 9A.44.030.

An actor is guilty of rape in the second degree if they have sexual intercourse with a person with a developmental disability and the actor (i) has supervisory authority over the victim or (ii) was providing transportation, within the course of his or her employment, to the victim at the time of the offense. Wash. Rev. Code Ann. § 9A.44.050.

“Person with a developmental disability,” means a person with a developmental disability as defined in RCW 71A.10.020. Wash. Rev. Code Ann. § 9A.44.010 (8).

Yes, an actor is guilty of rape in the second degree if they have sexual intercourse with a person who is incapable of consent by reason of being physically helpless. Wash. Rev. Code Ann. § 9A.44.050.

A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act is "physically helpless."  Wash. Rev. Code Ann. § 9A.44.010(12).

In any prosecution in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Wash. Rev. Code Ann. §§ 9A.44.030.

Yes, a person who is unconscious is physically helpless. An actor is guilty of rape in the second degree if they have sexual intercourse with a person who is incapable of consent by reason of being physically helpless. Wash. Rev. Code Ann. §§ 9A.44.010(12); 9A.44.050.

In any prosecution in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Wash. Rev. Code Ann. §§ 9A.44.030.

Yes, a person that is under the influence of a substance “which prevents a person from understanding the nature or consequences of the act of sexual intercourse” is “mentally incapacitated” and incapable of giving consent. Wash. Rev. Code Ann. § 9A.44.010(7).

In any prosecution in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim being physically helpless, it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Wash. Rev. Code Ann. §§ 9A.44.030.

It is rape in the first degree when the sexual intercourse occurs after the perpetrator or an accessory knowingly furnishes the victim with a legend drug, controlled substance, or controlled substance analog without the victim's knowledge and consent which renders the victim incapable of consent to sexual intercourse due to physical helplessness or mental incapacitation. Wash. Rev. Code Ann. § 9A.44.040.

Yes, there are several special relationships between the victim and actor that would impact the victim’s ability to consent and therefore make it a crime to engage in sexual intercourse with a person. Special relationships include:

• (a) a person in a significant relationship with the victim and abuses a supervisory position within that relationship;
• (b) a school employee;
• (c) a foster parent;
• (d) a person who undertakes the responsibility, professionally or voluntarily, to provide education, health, welfare, or organized recreational activities principally for minors, frail elders or vulnerable adults;
• (e) a person who in the course of his or her employment supervises minors;
• (f) long-term care facilities;
• (g) home health, hospice, or home care agencies;
• (h) a person providing transportation services within the course of his or her business; and
• (i) physical and mental health care providers.
• Wash. Rev. Code Ann. §§ 9A.44.093, 9A.44.050, 9A.44.096, 9A.44.010.

A person is guilty of custodial sexual misconduct in the first degree when the person has sexual intercourse with another person (a) when (i) the victim is a resident of a correctional facility or is under correctional supervision and (ii) the perpetrator is an employee or contract personnel of a correctional agency and the perpetrator has, or the victim reasonably believes the perpetrator has, the ability to influence the terms, conditions, length, or fact of incarceration or correctional supervision, or (b) when the victim is being detained, under arrest, or in the custody of a law enforcement officer and the perpetrator is a law enforcement officer. Consent of the victim is not a defense to prosecution of this crime.  Wash. Rev. Code Ann. § 9A.44.160.

Yes, a victim’s consent is a defense under the general rape statutes. State v. Weaville, 162 Wash.App. 801 (2011). However, consent is not an affirmative defense to the charge of rape in the second degree where the State solely charges the defendant of having sexual intercourse with a person incapable of consent by reason of being physically helpless or mentally incapacitated. State v. Lozano, 189 Wash.App. 117 (2015).  Consent is not a defense to first degree rape of a child under the age of 12 by a person more than two years older.  State v. Washington, 139 Wash.App. 845 (2007).

Consent is an affirmative defense to rape in the second degree if the defendant proves by a preponderance of the evidence that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not for the purpose of treatment, when the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination. Wash. Rev. Code Ann. § 9A.44.050.

No, no act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition; however, when a particular mental state is a necessary element of a crime, the fact of his or her intoxication may be taken into consideration in determining such mental state. Wash. Rev. Code Ann. § 9A.16.090.