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My 19 year old son was arrested for rape of a child third degree.

The girl was 15 but...
My 19 year old son was arrested for rape of a child third degree. The girl was 15 but had told him she was 17. She had an elaborate back story that led him to believe she really was older. They were in a relationship for at least 2 months until her parents found texts on her phone. From what I've read, it really doesn't matter what she said, it was his responsibility to figure out her real age before anything sexual happened. He has a very highly rated public defender assigned to him. We've talked to one other attorney so far. I can't tell if I'm being sold that he has a defense possibility by this attorney. The public defender is skeptical. I'd gladly pay to give him a chance to defend himself, if that is a real possibility. Our state is Washington.
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Answered in 46 minutes by:
4/3/2013
LawTalk
LawTalk, Lawyer
Category: Criminal Law
Satisfied Customers: 37,857
Experience: 30 years legal experience
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Good morning,

I'm Doug, and I'm very sorry to hear of your son's situation. My goal is to provide you with excellent service today.

While it is a matter of proof, there is in fact a WA statute that actually sets out a viable defense to child rape---when the adult reasonably believes that the minor is of legal age and that reasonable belief is based on specific statements made by the alleged victim.

Here is the statute: RCW 9A.44.030 (2) In any prosecution under this chapter in which the offense or degree of the offense depends on the victim's age, it is no defense that the perpetrator did not know the victim's age, or that the perpetrator believed the victim to be older, as the case may be: PROVIDED, That it is a defense which the defendant must prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed the alleged victim to be the age identified in subsection (3) of this section based upon declarations as to age by the alleged victim.

You might want to reconsider the private attorney, as they seem to understand the process here and they may be able to avoid the harsh effect that a conviction of this particular charge could bring.

Here is a link to the law: http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.44.030

And, here is a link to an article on this defense:

http://www.meryhewlaw.com/Practice-Areas/Statutory-Rape.shtml


You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

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Customer reply replied 4 years ago

Thank you Doug. I've read that RCW a hundred times and I was hoping that is what you would say. I've been looking at a different RCW that had me troubled. If you wouldn't mind looking at the other charge involving sexual texts, and the more restrictive defense burden below. He does have a felony sex offense in his past.



I know a Washington attorney will be able to help me the most, and I'm all for that. You are not trying to get me to give you a $20,000 retainer however and right now I trust your financially unbiased insight.


 


9.68A.090
Communication with minor for immoral purposes — Penalties.


(2) A person who communicates with a minor for immoral purposes is guilty of a class C felony punishable according to chapter 9A.20 RCW if the person has previously been convicted under this section or of a felony sexual offense under chapter 9.68A, 9A.44, or 9A.64 RCW or of any other felony sexual offense in this or any other state or if the person communicates with a minor or with someone the person believes to be a minor for immoral purposes through the sending of an electronic communication.


 


9.68A.110


Certain defenses barred, permitted.

(3) In a prosecution under RCW 9.68A.040, 9.68A.090, 9.68A.100, 9.68A.101, or 9.68A.102, it is not a defense that the defendant did not know the alleged victim's age. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor.

Good morning Shana,

Of course it is problematic if he has a sexual felony in his past. That however does not preclude the defense I proposed for the charge of rape of a child third degree.

This is a new charge that is now tossed in the mix, with it's own prosecution and defense criteria. It will be up to his attorney to prove that not only was he mislead by the lies of the alleged victim, but that he too affirmative steps himself to try and learn the true age of that girl through means other than her say so.

Whether he is convicted or not will fall on the facts as well as the abilities of the defense attorney to convince a trier of fact that the facts provide a reasonable doubt of guilt. I can't foresee the result from my perspective, but the facts dictate the necessity of a seasoned sexual offense defense attorney team.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

LawTalk
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Thank you for your positive rating of my service, Shana. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.
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