SENATE BILL REPORT

SHB 1333

BYHouse Committee on Judiciary (originally sponsored byRepresentatives Locke, Brough, Dellwo, Walker, Heavey, Belcher, Todd and P. King) 

Revising sexual offenses.

House Committe on Judiciary

Senate Committee on Law & Justice

Senate Hearing Date(s):February 22, 1988; February 24, 1988

Majority Report:  Do pass as amended.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Halsan, Hayner, Madsen, Nelson, Newhouse, Niemi, Talmadge.

Senate Staff:Lidia Mori (786-7418)

                  February 25, 1988

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, FEBRUARY 24, 1988

BACKGROUND:

The criminal code defines a number of crimes relating to sexual activity.  These crimes involve either sexual intercourse (rape or statutory rape), or sexual contact short of intercourse (indecent liberties).  Some of these crimes relate solely to victims under a certain age.  Others apply to victims of any age.  Generally, those crimes that apply to victims of any age require some element of forcible compulsion against the victim.  Indecent liberties and lesser degrees of forcible rape may also occur when the victim is either unable to consent or clearly expresses a lack of consent.  Those crimes that apply only to victims of a certain age do not require the use of forcible compulsion.

Sexual intercourse or contact without forcible compulsion and with consent may be a crime when it occurs with a victim of a certain age.  These offenses include three degrees of statutory rape and portions of the crime of indecent liberties.  In some instances with respect to these crimes the age of the offender may also be an element of the crime.

All of the current sex offenses involving child victims are ranked on the felony sentencing grid of the Sentencing Reform Act (SRA).  These rankings determine the presumptive sentence that is likely to be given an offender, but the maximum sentence is determined by the classification of the crime.  Rankings are expressed as "levels" in the SRA, with the higher levels indicating longer sentences.

Statutory rape in the first degree is a class A, level IX felony involving a victim under 11 and an offender over 13. Statutory rape in the second degree is a class B, level VII felony involving victims who are 11, 12 or 13, and an offender over 16. Statutory rape in the third degree is a class C, level III felony involving a victim who is 14 or 15, and an offender who is over 18.

Indecent liberties without forcible compulsion is a class B, level VI offense.  It may be committed by an offender of any age against a victim under age 14.  It may also be committed against a victim under 16 if the offender is at least 48 months older than the victim and in a "position of authority" with respect to the victim. Persons in positions of authority include parents and those acting as parents and anyone with a responsibility for the health, welfare, or education of the victim.

It is a defense to a sex offense based on the victim's age that the defendant relied on statements of the victim to reasonably believe the victim was "older."

SUMMARY:

Statutory rape is renamed "rape of a child". First degree is a class A, level X felony involving a victim under 12, and an offender at least 24 months older that the victim.  Second degree is a class B, level VIII felony involving a victim who is 12 or 13, and an offender at least 36 months older than the victim.  Third degree is a class C, level IV felony involving a victim who is 14 or 15, and an offender at least 48 months older than the victim.  A person of any age, however, commits any of the three levels of the crime if he or she has intercourse with a victim of the prescribed age, and there has been no consent by the victim, whether or not the lack of consent was clearly expressed by the victim's words or conduct.

The new crime of sexual misconduct with a minor in the first degree is also created.  It is a class C, level III felony involving sexual intercourse with a victim who is 16 or 17, and an offender who is at least 60 months older than the victim and who abuses a supervisory position while in a "significant relationship" with the victim.  Persons in significant relationships include anyone who undertakes to provide education, health, welfare or organized recreation for minors. "Abuse" of a supervisory position means a direct or indirect threat or promise to use authority to the detriment or benefit of the minor.

The new crime of sexual misconduct with a minor in the second degree is created. It is a gross misdemeanor.  Its elements are identical in all respects to the first degree crime except that it involves sexual contact instead of sexual intercourse.

Three degrees of child molestation are created.  First degree is a class B, level VII felony involving a victim under 12 and an offender at least 36 months older than the victim. Second degree is a class B, level VI felony involving a victim who is 12 or 13, and an offender who is at least 36 months older than the victim. Third degree is a class C, level III felony involving a victim who is 14 or 15, and an offender who is at least 48 months older than the victim.  As in the case of crimes involving intercourse, a person of any age commits any of the three levels of the crime if he or she has sexual contact with a victim of the prescribed age, and there has been no consent by the victim.

The "mistaken age" defense to sex offenses is amended to reflect the particular victim and offender age requirements of each sex offense.

SUMMARY OF PROPOSED SENATE AMENDMENTS:

For the crimes of first, second or third degree rape of a child, it is not necessary to prove that the victim did not consent to sexual intercourse with the perpetrator.  It is also not necessary to prove lack of consent in order to prove the crimes of child molestation in the first, second or third degree.

The crimes of rape of a child in the first or second degree or child molestation in the first or second degree shall not be prosecuted more than seven years after their commission.

A "serious offender" can be a person 15 years of age or older who has committed an offense which if committed by an adult would be rape of a child in the second degree.

The crime of patronizing a prostitute is created.  A person is guilty of the misdemeanor if, pursuant to a prior understanding, he or she pays a fee to another person as compensation for having engaged in sexual conduct with him or her or pays a fee pursuant to an understanding that in return for the fee, sexual conduct will be engaged in.  A person is also guilty of the crime if another person is solicited to engage in sexual conduct for a fee.

The statutory prohibitions on distribution of erotic materials to minors are repealed and replaced with provisions prohibiting the display, sale, or distribution to minors of materials which are harmful to minors (patently offensive sexual conduct which lacks artistic value).  Material which may be harmful to minors includes written and visual materials and live performances.  A person who knowingly displays materials harmful to minors in a manner in which minors may view it, sells or otherwise distributes to a minor materials harmful to minors, or presents to a minor a live performance which is harmful to minors is guilty of a gross misdemeanor.  Each day that a person engages in a prohibited activity is a separate offense and every act or transaction that is prohibited is a separate offense.

Libraries and museums are exempted from the provisions of the bill.

The definition of sexually explicit conduct is modified to include exposure of the unclothed breast of a minor.  Masturbation is proscribed whether or not for the sexual stimulation of the viewer.

For purposes of offenses involving the sexual exploitation of children, the distinction between minors under 16 and under 18 is eliminated.  It is a class B felony to involve any minor under 18 in sexually explicit conduct.  It is a class C felony to develop, publish, distribute, sell, or bring into the state any material showing a minor under 18 engaging in sexually explicit conduct.  It is a gross misdemeanor to possess material showing a minor under 18 engaging in sexually explicit conduct.  Communication for immoral purposes with a minor under 18 years of age is a class C felony.  It is an affirmative defense to a prosecution for possession, distribution, or bringing into the state proscribed materials that the defendant was a law enforcement officer conducting any official investigation of a sex-related crime against a minor.

Appropriation:    none

Revenue:    none

Fiscal Note:      available

Senate Committee - Testified: Norm Maleng, King County Prosecuting Attorney; Representative Dellwo; Lucy Berlinger; Maegan McGinnis