Consent in Washington State: What To Look For And How To Protect Each Other

In sexual encounters, consent is one of the most critical elements. Consent can make the difference between a mutually enjoyable experience, or a horrid and traumatizing crime. Consent is essential for both people taking part in sexual activity. Not getting clear consent can lead to criminal investigations and accusations. Ensuring that both sides consent is the best way to protect yourself from sexual assault and rape allegations.


But how do you know you have consent? Consent is a big topic in modern culture. Both the #MeToo movement and the recently concluded trial between Johnny Depp and Amber Heard have brought the argument over ‘what is consent’ back into the public spotlight. We can help explain what consent is and how best to make sure it’s there for both sides. We can also explain what the consequences of a lack of consent look like, and what criminal liabilities you could face.


The Basics of Consent

Consent to sexual activity comes in various forms. It can be verbally spoken, clearly and affirmatively, before sexual activity begins. This is ideal for both sides in terms of liability, but it is not universal. There is no strict requirement that all consent be verbal and affirmative, even if it is good practice. Another form of consent is eager nonverbal reciprocation. If someone begins the process and the other party reciprocates and pushes forward, that is a clear sign of consent, at least to that specific form of activity. 


Not all consent is as straightforward as above. Relying on only nonverbal consent can be risky. Preconceptions might affect whether one thinks their partner is consenting, while the other believes they’re showing a lack of consent. Responding well to flirting might be seen as consent to continue, while the other party might see it differently. 


In addition, body language can mean different things to different people. Someone pulling their partner closer might see that as consent to escalate. But the other might only be consenting to a kiss, not going further. This is especially important for first-time or early encounters, as the two partners might not know what certain body language from the other person means to them.


Consent is not just “one-and-done.” People can change their minds during the encounter. That can mean withdrawing their consent, or not giving consent to go any further. Even the initiator can decide not to go forward. Signs of withdrawn consent are just as important. Affirmative withdrawal is very helpful, just as affirmative consent is. But nonverbal signs of withdrawal are just as important. As with consent, each person’s body language showing that consent is withdrawn differs.


Relying on silence or lack of resistance as consent can be very risky. Likewise, an existing relationship does not mean consent is not required. While long-term partners might understand better what consent looks like from each other, consent is still required. The best way to keep both parties safe while enjoying the event is to be open and affirmative in consent.


What are the consequences of a lack of consent?

In Washington, crimes involving sexual activity without consent include indecent liberties and rape. Indecent liberties, known in other states as sexual assault, occurs when there is sexual contact between two people without consent from one side. This contact does not need to be intercourse. Rape occurs when there is sexual intercourse without consent. These two crimes often accompany each other, but indecent liberties can occur even without intercourse taking place.


Rape charges are divided into three degrees. 

  • Rape in the third degree occurs when one party does not consent and makes that lack of consent known. 
  • Rape in the second degree can be committed in a variety of ways. One involves “forcible compulsion,” or forced contact. Another involves the victim’s incapacity or the actor’s being in an authority position over the other person. 
  • Rape in the first degree involves forcible compulsion or threatening to use a deadly weapon, kidnapping, or serious injury.


Both crimes can and do occur even in established relationships. Even when married or engaged, consent is just as important. While what that looks like might change in marriage, it is still required for both parties. 


A person can be charged with rape or indecent liberties when one party is incapacitated. A person can be incapacitated when they have developmental or mental challenges that make any consent invalid from the start. They can also be incapacitated through alcohol or other drugs. A person that is too drunk cannot give consent to sexual activity. 


In addition to rape and indecent liberties, there are sex crimes involving people below the age of consent. The severity of these crimes depends on the age of the victim. The most serious one is “Rape of a Child.” This occurs when an adult has sexual intercourse with someone below the age of consent. In Washington, the age of consent is 16 for most people; it is 18 when the older person has one of several specified positions of authority or influence over the young person.. 


The best way to protect yourself from facing this crime is to avoid sexual activity with anyone under 18. It is the best, most sure-fire way to stay safe.


What to do if you or someone you know is facing an accusation

Regardless of the cause, many people face accusations of indecent liberties or rape. These accusations are among the most serious and frightening you could face. Very few other crimes have such reputational and legal backlash as rape. And being charged with indecent liberties isn’t much better. 


If you know someone in that situation, or you are the one in that situation, the Marshall Defense Firm can help. Our team of attorneys is devoted to helping people in their time of need. We know how to work together to provide the best defense possible. Contact us at 206.826.1400 or to schedule a consultation.


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