The Age of Consent to Sexual Intercourse in Washington State

Every state has laws defining the “age of consent,” the age at which a person is determined to be old enough to be capable of legally agreeing to sexual intercourse. In Washington, the age at which someone can legally consent to sex is generally 16; there are a few circumstances where a person who is over the age of 16 but under the age of 18 is unable to legally consent to sex on account of their age. These special rules usually relate to characteristics of the other person and the type of relationship they have with the teenager and will be discussed later in this post. Before assuming it’s always safe to engage with sexual behavior with a minor who has reached the age of 16, it’s important to understand these rules.

“Statutory Rape” or Rape of a Child

Although most people understand rape is a serious crime, some do not realize that it doesn’t always have to include forcible penetration. Washington law considers anyone under the age of 16 to be incapable of consenting to sex, which means that regardless of whether an adult believes they’re engaging in a consensual relationship with someone under the age of 16, they can still be charged with Rape of a Child, or what used to be known as “statutory rape,” if they choose to engage in sexual intercourse with a person under the age of 16.

In Washington law, “sexual intercourse” means more than it does in normal conversation. It includes:

• what we ordinarily think of as sexual intercourse, occurring upon any penetration, however slight;
• Any penetration of the vagina or anus by an object, when committed on one person by another;
• Any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another.

Regardless of whether the complaining witness is an adult or child, the government doesn’t have to prove force in these instances. 

The seriousness of the charge depends on the age of the child at the time intercourse occurred.  If the child was younger than 12, the charge will be Rape of a Child in the First Degree. If the child was 12 or 13, the charge will be Rape of a Child in the Second Degree. These are both Class A felony offenses. If the child was 14 or 15, the charge will be Rape of a Child in the Third Degree, which is a Class C felony.

The ”Romeo and Juliet” Exception

Named after the William Shakespeare tragedy about two teenagers in love, Romeo and Juliet laws permit teenagers who are close in age to have consensual sex. While statutory rape laws are applied to ensure people who are much older than an individual are prevented from taking advantage of young people by having sexual intercourse with them, Romeo and Juliet laws work by setting an age discrepancy that must apply before someone will be arrested for “statutory rape” (or Rape of a Child under Washington law).

In Washington, the following “Romeo-and-Juliet exemptions” are carved out within the state’s statutory rape laws. They prevent serious criminal charges if consensual sexual contact occurs between young people who are close in age:

• A minor younger than 12 and another minor who is not more than two years older (or three years older if the sexual contact does not involve sexual intercourse)
• A minor who is 12 or 13 and another minor who is not more than three years older (or four years if the sexual contact does not involve sexual intercourse)
• A minor who is 14 or 15 and someone who is not more than four years older than that minor

Washington also has a marital exemption for child rape, which allows married people to have consensual sex that would otherwise be prohibited by law. However, in order to get married, couples in Washington must both either be at least eighteen years old or receive parental permission and be seventeen years of age. Any marriage involving an individual under the age of seventeen is considered void in Washington unless a superior court judge rules the couple may get married because of necessity.

Exceptions to Washington’s Age of Consent Law

As previously mentioned, there are certain situations where the power dynamic between a minor and an adult is imbalanced, raising concerns about whether a sexual relationship is truly consensual. To address this, Washington law prohibits sexual contact with a 16 or 17-year-old in circumstances where the adult is deemed to be in a supervisory position over the minor. These crimes are classified as either Sexual Misconduct With a Minor in the First Degree or Second Degree.

Sexual Misconduct With a Minor can be committed in several ways. It is criminal:

• for a foster parent to have, or knowingly cause another person under the age of 18 to have, sexual contact or sexual intercourse with his or her foster child who is at least 16 years old.

• “Sexual intercourse” will result in a first-degree charge and is a Class C Felony.
• “Sexual contact” is a second-degree charge and is a Gross Misdemeanor and means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.

• for a school employee to have, or cause another person under the age of 18 to have, sexual contact or sexual intercourse with an enrolled student of the school between the ages of 16 and 21. The perpetrator must be at least 5 years older than the student.
• to have, or cause someone else under the age of 18 to have, sexual contact or sexual intercourse with another person who is either 16 or 17 years old and not married to the perpetrator, if the perpetrator is:
  • at least 60 months older than the victim 
  • and is in a supervisory position over minors 
  • and/or cares for the welfare, health, education, or recreational activities for minors, and abuses the supervisory relationship to cause the person under 18 to engage in sexual activities.

The Dangers of “Sexting” With Teenagers

The complex intricacies of when sexual behavior is or is not allowed when at least one individual is a minor do not stop at laws on sexual intercourse. Child pornography is generally defined as any sexual image of a person under 18 and possible charges include disseminating, viewing, or possessing child pornography, all of which are felonies and require registration as a sex offender.

Ironically, until 2019 when Washington lawmakers implemented an exemption for individuals close in age, the same 15-year-old and 17-year-old who could legally have consensual sex with each other could still be charged with a felony in if they exchanged nude photos of themselves. Lawmakers in Washington then recognized the absurdity of punishing consensual sexting between teenagers in the same manner as an adult who downloads sexually explicit images of a 6-year-old child and took steps to address this. Because the Responsible Teen Communications Act went into effect in Washington in 2019, there is no longer a risk of child pornography charges if the situation involves two minors sharing depictions of themselves or viewing and/or possessing these types of images (so long as the minor depicted is at least 13 years old).

The Act amended existing child pornography laws in a number of positive ways:

• A minor (anyone under the age of 18) cannot be charged with possessing, viewing, or bringing or sending into the state child pornography unless the minor depicted engaging in sexually explicit conduct is 12 years old or younger.
• If a minor distributes, publishes, transfers, disseminates, or exchanges a depiction of another minor who is 13 years of age or older it is now a misdemeanor rather than a felony. (Note that it is still a felony if the depiction is of another minor who is 12 years old or younger.)
• It is a felony if a minor is financing or selling depictions of another minor. However, if a minor is selling sexually explicit images of himself or herself, it is a misdemeanor.
• It is no longer a crime for a minor to finance, attempt to finance, develop, duplicate, publish, print, disseminate, exchange, or possess a sexually explicit image of himself or herself.
• Prosecutors are required to divert a minor’s first offense for (1) selling depictions of himself or herself engaged in sexually explicit conduct and (2) distributing sexually explicit images of another minor who is 13 years of age or older.

If you or your child is facing any kind of sexual misconduct allegation, the Marshall Defense Firm is here to help. Our experienced, skilled defense attorneys would be happy to discuss the matter with you. Contact us at 206.826.1400 or solutions@marshalldefense.com to schedule a consultation.