Rape of a Child

No accusation is worse than this one: you raped a child. Anyone facing such an accusation needs to look immediately for an attorney with the experience and skill to defend such a case well. Juries and judges can react with revulsion to the mere thought of the alleged conduct. It’s a great challenge for an attorney to get even an innocent defendant acquitted.

It’s not just liberty that is at stake. The stigma of a child rape accusation is greater even than the stigma of a murder charge.  At the Marshall Defense Firm, we understand that a child rape accusation can make a person feel very alone.

But you are not alone. No matter what the evidence, we don’t judge you. We are on your side.

Defending against Accusations of Rape of a Child

The essence of a child rape accusation is that the accused had sexual intercourse with a person who was too young to consent. It’s a crime that was called “statutory rape” until the Washington Legislature changed the name in 1991. It doesn’t require proof of any force or threat. The age of the child makes the sex act illegal. (See below for more details on the legal requirements for Rape of a Child.)

At the Marshall Defense Firm, we begin building a defense by looking with a critical eye at the evidence against the accused.

Nearly always a big part of the evidence is the complaining child’s statements. The child usually has told someone that the accused had sex with him/her. We look to see whether those statements were made in circumstances that give reason to question their reliability. For example, if the first accusing statements were made to someone who disliked the accused—maybe to someone who suspected the accused had an improper interest in the child—that can undermine the reliability of the statements.

Defending against Medical Evidence

Sometimes there is medical evidence. A child’s genitals or anus may be reddened. But redness can come from many causes, not just from sexual activity. There may be notches in the hymen or other unusual features in the genitals or the anus. But most unusual features of the anatomy can come from many causes other than sex; some are congenital—that is, the child was born that way. We engage physicians to study the medical evidence and, if appropriate, to testify that the medical condition of the child does not prove they were raped.

Most physicians refuse to testify for the defense in a child rape case. This is because some other physicians will attack them if they do, sometimes even trying to take away their licenses to practice medicine. We stay in touch with the physicians courageous enough to testify for the accused, so we can enlist them in the cases where they are needed.

Defending against DNA and other Biological Trace Evidence

There may also be biological trace evidence. A scientist from a police crime lab may say they have found traces of semen or blood. The scientist may say that the trace evidence contains DNA and that the DNA resembles the DNA of the accused.

We know from experience that biological trace evidence and DNA evidence must be rigorously tested by the defense. These kinds of evidence have the luster of science and certainty, but often the conclusions drawn by police crime lab scientists are far from certain. Studies have shown that whether a crime lab scientist will find a match with the accused can be heavily influenced by what the scientist has heard about the non-scientific evidence. For example, if police tell the scientist that the accused is guilty, the scientist is more likely to find a match.

Bad science is a danger an effective attorney must confront vigorously.

Washington Law

Under Washington State law, rape of a child occurs when an adult has sexual intercourse with a child of a specified age. There are three degrees of rape of a child, distinguished by the age of the child victim. Each degree also contains a requirement for the difference in age between the two persons, so a young person cannot be convicted of rape of a child because they had sex with someone about their age.

  • Rape of a child in the first degree: sexual intercourse with a person who is less than 12 years old and who is more than 24 months younger than the perpetrator.
  • Rape of a child in the second degree: sexual intercourse with a person who is at least 12 years old but less than 14 years old, who is not married to the perpetrator, and who is at least 36 months younger than the perpetrator.
  • Rape of a child in the third degree: sexual intercourse with a person who is at least 14 years old but less than 16 years old, who is not married to the perpetrator, and who is at least 48 months younger than the perpetrator.

“Sexual intercourse” is defined by Washington law to mean what we typically think of as intercourse, and also any penetration of the vagina or anus by any body part or object, no matter how slight the penetration, unless the penetration is for medical treatment or diagnostic purposes. It also means any sexual contact between the sex organs of one person and the mouth or anus of another person.

Penalties for Rape of a Child

Anyone convicted of rape of a child is eligible for the Special Sex Offender Sentencing Alternative, but in practice, SSOSA is hardly ever given to persons who do not plead guilty rather than take their case to trial. SSOSA usually includes a year in jail.

For persons who do not receive SSOSA, conviction means a term in prison.

Rape of a child in the first degree: Class A felony sex offense. The standard range sentence for someone with no prior criminal convictions is 93 to 123 months in prison. Unless there are legally-acceptable mitigating or aggravating circumstances, the sentencing judge must give a sentence within that range.

But a sentence for rape of a child in the First Degree is an indeterminate sentence. That means the offender will come before the End of Sentence Review Committee and the Indeterminate Sentence Review Board just before the end of the sentence imposed by the judge. If the ISRB decides the offender is likely to commit another sex offense after release, it may extend his term for five years. That process can be repeated every five years for the rest of the offender’s life, meaning they never get released.

Offenders who are released will have “community custody” (akin to parole) for the rest of their lives.

Rape of a child in the second degree: Class A felony sex offense. The standard range sentence for someone with no prior criminal convictions is 78 to 102 months in prison. Unless there are legally-acceptable mitigating or aggravating circumstances, the sentencing judge must give a sentence within that range.

Like sentences for rape of a child in the first degree, a sentence for rape of a child in the second degree is an indeterminate sentence, so imprisonment could turn out to be for life.

Offenders who are released will have “community custody” for the rest of their lives.

Rape of a child in the third degree: Class C felony sex offense. The standard range sentence for someone with no prior criminal convictions is 12 to 14 months in prison. Unless there are legally-acceptable mitigating or aggravating circumstances, the sentencing judge must give a sentence within that range.

Once released, an offender must complete three years of community custody.

Large fines are also authorized for all the three degrees of rape of a child, but most offenders are required to pay only a variety of smaller costs and assessments.

Other Consequences of a Conviction for Rape of a Child

Persons convicted of rape of a child must register with law enforcement as sex offenders. This brings more community attention to them and can make it difficult to reintegrate in society after a prison term.

Because they are on community custody, persons who have been convicted of rape of a child must get permission to travel and are prohibited from going places where children congregate, such as schools, parks, playgrounds, and ballfields. They are also prohibited from living near such places. They usually must undergo periodic polygraph (lie detector) tests to see whether they have been obeying the rules of their community custody.

Challenges in Defending against Rape of a Child Charges

With this much on the line, it is essential to defend vigorously and intelligently.

At the Marshall Defense Firm, we have focused for decades on child rape and other child sex abuse cases. No two cases are alike, but we have the same basic approach to all special-assault cases.

Interviewing the Child

To defend against rape of a child charges, an attorney must be willing to delve into sex and other sensitive topics, even with small children. Under Washington law, the defense attorney is permitted to interview the complaining child. This interview is often where our attorneys win our clients’ cases. This interview needs to be conducted by an attorney who has a skill not likely to be developed except by handling many child abuse cases. Since our firm focuses on child abuse cases, our attorneys have this skill.

Most child rape charges arise when a child tells someone—a friend, a parent, a teacher, a neighbor—that she or he has been abused. The initial report leads to a police investigation, and in Washington that usually includes an interview by someone trained in investigative interviewing of children. Child interviewers throughout Washington are usually trained to follow the interview guide created at Harborview Medical Center in Seattle.

But interviewing children is difficult, even for persons trained to do it. Every interviewer suffers from what psychologists call “confirmation bias”—the natural tendency to look for information that supports an idea and to overlook information that contradicts it. This means the child interviewers used by the police are unavoidably biased against the accused. Even the best-intentioned interviewers can introduce or suggest facts which the child will adopt and report as things that happened.

The child’s interview is usually audio- and video-recorded. At the Marshall Defense Firm, we know the best practices in child interviewing. We also work closely with leading experts in forensic interviewing and psychology to spot instances of suggestion or leading, and evidence of false memories.

Affirmative Defense When the Young Person Lies about Their Age

Many teenagers are impatient to reach adulthood. Sometimes this leads them to lie about how old they are.

This is a particular danger when two people meet on the Internet. There it is easy for a young teen to give a convincing impression of being older. When an online chat leads to an in-person meeting, the adult may not pause to reconsider whether the other person is really old enough to consent to sex.

It can be a defense to a child rape charge that the defendant mistakenly thought the teen was old enough—but only if the teen actually misrepresented their age, and the defendant reasonably believed the misrepresentation. Because this is what the law calls an “affirmative defense”, the defendant bears the burden of proving these facts at trial.

Presenting this affirmative defense effectively requires an attorney to know the subtleties of the law and to use them to the defendant’s advantage.

What it’s Like to Have The Marshall Defense Firm in Your Corner

You are not alone.

Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.

Then there’s our experience. For decades we have defended special-assault cases like rape of a child. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.

And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.

Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.

If you or a loved one needs services like ours, contact us at 206.202.1633 or solutions@marshalldefense.com for an appointment.