When a person is accused of rape, it can feel as though life has come to a stop—and may never restart. Any serious felony charge raises the specter of long imprisonment. This charge also goes to the heart of a person’s reputation. Tremendous stigma, as well as loss of liberty, can result.

We can help. You are not alone.

Defending against a Rape Charge

At the Marshall Defense Firm, our approach to defending against a rape charge is similar to our approach to defending against other special-assault charges. It begins with taking time to listen to our client, to get to know him, to build an attorney-client relationship of understanding and trust.

Under the law, a criminal defendant is generally not required to prove anything. Only the prosecution has a burden of proof. But we know jurors have trouble following that rule. They wonder, “If the defendant didn’t rape the complainant, why does the complainant say he did?” Our investigation focuses on finding the best answer to that question.

Washington State Law on Rape

Washington law has three degrees of rape. All require some form of sexual intercourse.

In Washington law, “sexual intercourse” is defined to include what we typically think of as intercourse, and also any penetration of the vagina or anus by any body part or object 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.

Keep in mind that rape of a child is a different crime from rape. The premise of rape of a child is that a person can be too young for sex even if they seemingly consent to it. Rape, on the other hand, does not depend on the age of the alleged victim.

The Three Degrees of Rape

There are many sets of circumstances that can make an act of sexual intercourse count as some degree of rape.

Rape in the first degree is committed when a person has sexual intercourse with another person:

  • By forcible compulsion; and
  • either the perpetrator or someone helping the perpetrator—
    • uses or threatens to use a deadly weapon or what appears to be a deadly weapon, or
    • kidnaps the victim, or
    • inflicts serious physical injury, or
    • feloniously enters a building or vehicle containing the victim.

Rape in the second degree is committed when a person has sexual intercourse with another person:

  • By forcible compulsion (but with none of the additional facts required for rape in the first degree); or
  • When the victim is incapable of consent because physically helpless or mentally incapacitated; or
  • When the victim has a developmental disability, and the perpetrator is not married to the victim and the perpetrator–
  • has supervisory authority over the victim, or
  • was providing transportation, within the course of employment, to the victim at the time of the crime; or
  • When the perpetrator has intercourse with the victim while providing health care treatment to the victim; or
  • When the perpetrator has supervisory authority over the victim while the victim resides in a facility for persons with mental disorder or chemical dependency; or
  • When the victim is a frail elder or vulnerable adult, and the perpetrator is not married to the victim, and the perpetrator either—
    • has a significant relationship with the victim, or
    • was providing transportation to the victim at the time of the crime.

Rape in the third degree is committed when a person has sexual intercourse with another person:

  • When the victim did not consent and did clearly express that lack of consent; or
  • When there is a threat of substantial unlawful harm to the victim’s property rights.

Rape Shield Law

Washington, like most American jurisdictions, has a rape shield law. These laws were adopted to stop the practice of denigrating rape complainants as loose women. The idea—quite offensive to most Washingtonians today—was that a promiscuous woman had low moral standards in general and so could not be relied upon to testify truthfully.

Under Washington’s rape shield statute, evidence of a complainant’s sexual behavior on other occasions is not admissible to prove either her lack of credibility or her consent to the act of intercourse charged as rape. When the defense contends such evidence is admissible for another purpose, the statute requires notice to the prosecution and a hearing for a judge to decide whether to allow the evidence.

Court rules constitute rape shield laws in federal criminal cases and in Washington state court civil cases such as sexual assault protection order cases.

Penalties if Convicted of Rape

A rape conviction is a life-changing event.


Rape in either the first degree or the second degree is a Class A felony. That means imprisonment can be for life.

Rape in the third degree is a Class C felony, so imprisonment cannot be for more than five years.

All three degrees of rape fall within Washington’s “determinate plus” sentencing scheme. This means that the judge sentences an offender to a “minimum term” that falls within the Standard Sentencing Range established by law. The Standard Sentencing Range in each case depends on the offender’s prior criminal record and the number of counts (criminal incidents) of which the accused is found guilty.

Then, as the end of the minimum term approaches, the Indeterminate Sentence Review Board decides whether the offender, if released, is likely to commit another sex offense. If the ISRB decides that he likely would do that, it can extend his imprisonment for another five years.

That process can be repeated each time the offender nears a release date, so that the offender stays in prison until death (except that the maximum imprisonment for rape in the third degree is five years).

The initial minimum term can be longer than the standard sentencing range if the prosecutor charges and proves any of several aggravating factors set out by law.

Community Custody and Sex Offender Registration

After serving whatever time in custody is ordered, the offender will be on “community custody,” akin to parole, for years—if convicted of rape in the first or second degree, for life. Persons on community custody must get permission to travel (even to leave the county) 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.

Everyone convicted of rape is also required to register with the sheriff as a sex offender. Law enforcement officers will 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.

Winning a Rape Trial

Whether falsely accused or not, everyone charged with rape is entitled to a trial with a defense lawyer who fights to win.

We develop a defense against a rape charge using the same method for all special assault cases. In every case, we gradually develop our “theory of the case,” our term for the story that explains how our client has come to be falsely accused.

Often the accusation is date rape or acquaintance rape. When the complainant and the accused have known each other a while, we thoroughly explore their relationship, especially the accuser’s perception of the relationship. We also deeply investigate the other social pressures at work on the accuser.

In many rape cases these questions merit exploration:

  • Did the accuser find themselves in trouble with a jealous partner and see making a rape claim as the way to get out of trouble?
  • Did a young person’s parent find out they had had sex and demand an explanation?
  • Did the accuser get drunk, consent to sex, and wake up wanting to blame someone else for behavior they regret?

Here’s a pattern we’ve dealt with at the Marshall Defense Firm: a staff member in a treatment facility for the mentally disabled jumps to a rash conclusion about what another staff member is doing in a patient’s room. In a situation like that, we dig up evidence of the accusing staff member’s animus against our client.

Defending Against Medical Evidence

Sometimes there is medical evidence. We engage physicians to study the medical evidence and, if appropriate, to testify that the prosecution’s interpretation of the medical evidence is wrong.

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 closely 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.

One of the defenses to one form of Rape in the Second Degree 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 intercourse 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.

Every case is unique. In each case, we develop a defense tailored to the evidence and the law in that case.

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 rape. 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.

Confer with us in good health! You may choose to confer with us by Zoom or telephone to avoid Covid risk. Please phone us at 206.826.1400 to schedule your conference.