AN ACT Relating to rape by counselors; amending RCW 9A.44.010 and 9A.44.060; defining crimes; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 1, chapter 14, Laws of 1975 1st ex. sess. as amended by section 1, chapter 123, Laws of 1981 and RCW 9A.44.010 are each amended to read as follows:

As used in this chapter:

(1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

(2) "Married" means one who is legally married to another, but does not include a person who is living separate and apart from his or her spouse and who has filed in an appropriate court for legal separation or for dissolution of his or her marriage((.));

(3) "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause;

(4) "Physically helpless" means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act;

(5) "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;

(6) "Consent" means that at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse;

(7) "Counselor" means an individual, practitioner, therapist, or analyst who engages in the practice of counseling to the public for a fee, including, for the purposes of this chapter, hypnotherapists. "Counselor" does not include a person solely engaged in:

(a) The practice of a profession by a person who is either registered, certified, licensed, or similarly regulated under the laws of this state and who is performing services within the person's authorized scope of practice, including any attorney admitted to practice law in this state when providing counseling or hypnotherapy incidental to and in the course of providing legal counsel;

(b) The practice of counseling by an employee or trainee of any federal or state agency, or the practice of counseling by a student of a college or university, if the employee, trainee, or student is practicing solely under the supervision of and accountable to the agency, college, or university, through which he or she performs such functions as part of his or her position for no additional fee other than ordinary compensation;

(c) The practice of counseling or hypnotherapy by a person under the auspices and authority of any established or legally cognizable church or religious denomination if the activities and services are within the scope of the performance of the person's ministerial duties, as long as the person rendering the services remains accountable to the established authority thereof, where such authority exists;

(d) The practice of counseling or hypnotherapy by a person without charge as long as the person does not represent oneself to the public as a counselor;

(e) The practice of counseling or hypnotherapy by persons offering services for public and private nonprofit organizations or charities not primarily engaged in counseling or hypnotherapy for a fee when approved by the organizations or agencies for whom they render their services;

(f) The practice of religion by persons who rely solely on spiritual means through prayer for healing in accordance with the tenets and practices of an established or legally cognizable church or religious denomination;

(g) Evaluation, consultation, planning, policymaking, research, or related services conducted by social scientists for private corporations or public agencies.

Sec. 2. Section 6, chapter 14, Laws of 1975 1st ex. sess. as amended by section 3, chapter 244, Laws of 1979 ex. sess. and RCW 9A.44.060 are each amended to read as follows:

(1) A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:

(a) Where the victim did not consent as defined in RCW 9A.44.010(6), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct, or

(b) Where there is threat of substantial unlawful harm to property rights of the victim, or

(c) Where the perpetrator gained the consent of the victim through the relationship of serving as a counselor to the victim.

(2) Rape in the third degree is a class C felony.