Under Washington State law, indecent liberties is the crime that covers most illegal sexual contact, regardless of whether intercourse is a part of the sexual activity.
There are many ways indecent liberties can be committed and even more ways it can be defended. The defense attorney needs to start by examining exactly what form of indecent liberties is alleged and measuring the evidence against the legal requirements for that form.
Washington’s Indecent Liberties Statute
Every act of indecent liberties under Washington law must include “sexual contact” with the victim.
“Sexual contact“ 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. This offense is typically charged for sexual groping and fondling; if intercourse is alleged, the charge can instead be rape.
For sexual contact to qualify as indecent liberties, one of the following must be true:
- The sexual contact occurs by forcible compulsion.
- The victim is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless.
- The victim has a developmental disability, and the perpetrator is a person who is not married to the victim and who:
- Has supervisory authority over the victim; or
- Was providing transportation, within the course of his or her employment, to the victim at the time of the offense.
- The perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination.
- The victim is a resident of a facility for persons with a mental disorder or chemical dependency and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim.
- The victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who:
- Has a significant relationship with the victim; or
- Was providing transportation, within the course of his or her employment, to the victim at the time of the offense.
“Forcible compulsion” means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
Maximum Penalties for Indecent Liberties
The most serious offense, with the most severe penalties, is indecent liberties by forcible compulsion. Because it is a Class A felony, an offender can receive life in prison and a fine of $50,000.
Every other indecent liberties offense is a Class B felony. An offender can receive as much as 10 years in prison and a $20,000 fine.
Likely Penalties for Indecent Liberties
Few offenders receive the maximum penalty when found guilty of indecent liberties.
Some receive the Special Sex Offender Sentencing Alternative. This usually includes a year in jail, but a few SSOSA offenders receive more than a year, and a few receive much less.
Offenders who don’t receive SSOSA usually receive a sentence within the Standard Sentencing Range established by Washington law. The Standard Sentencing Range in each case depends on the number of counts (criminal incidents) of which the accused is found guilty and the offender’s prior criminal record.
For example, a person with no prior criminal record would have a Standard Sentencing Range of 51-68 months in custody if found guilty of one count of indecent liberties by forcible compulsion, or 15-20 months if found guilty of one count of any other form of indecent liberties.
Penalties can be increased if the prosecutor charges and proves any of several aggravating factors set out by law.
Other Consequences of an Indecent Liberties Conviction
Indecent liberties convictions have other life-changing consequences.
After serving whatever time in custody is ordered, the offender will be on “community custody,” akin to parole, for years—in forcible compulsion cases, for life. Sex offenders on community custody must get permission to travel (even to leave the county) and are often prohibited from going places where children congregate, such as schools, parks, playgrounds, and ballfields. They are also often 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.
Everyone convicted of indecent liberties is also required to register as a sex offender. Law enforcement officers then go to the offender’s home periodically to confirm that he or she lives there. Neighbors often learn that a person is a registered sex offender, leading to more stigma.
Defending against an Indecent Liberties Charge
Because there are so many different forms of indecent liberties under Washington law, there are many different starting points for the defense.
One of the defenses available in some indecent liberties cases is what the law calls an affirmative defense—a defense on which the defendant, not the prosecution, bears the burden of proof. If the charge is based on evidence that the complaining witness was unable to consent to sex due to mental incapacity or physical helplessness, it is an affirmative defense that the defendant reasonably believed otherwise.
In one of our cases at The Marshall Defense Firm, our client attempted to awaken a woman for sex. She responded in ways that led him to believe she was awake and accepting his invitation. After several minutes of foreplay, though, she came fully awake and reacted in shock to his presence in her bed. She complained to police.
Our defense was that our client had reasonably believed the woman was awake, that is, that she was not “physically helpless.” We called an expert in sleep medicine to testify. His testimony helped jurors understand that a person who is partly asleep can behave as our client said the woman had behaved, leading him to think she was awake and consenting.
Another affirmative defense is available when the charge is that a health care provider took indecent liberties with a client or patient. The sexual contact does not constitute a crime if the client or patient consented to it while knowing that it was not for healthcare treatment.
These are just two illustrations of how to tailor a defense to the particular form of indecent liberties that is alleged. In every case the indecent liberties defense attorney needs to bring experience, insight, and vigor to building a strong defense.
What it’s Like to Have The Marshall Defense Firm in Your Corner
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 indecent liberties. 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.
