Custodial Sexual Misconduct in the First and Second Degree

Tacoma Custodial Sexual Misconduct in the First and Second Degree

Sex crimes under Washington state law generally involve engaging in sexual activity with another person without that person’s consent. In some circumstances where one adult has a position of authority or power over another adult, state law prohibits exploitation of that position of power for sexual purposes. The offense of “custodial sexual misconduct” criminalizes sexual activity between law enforcement officers or correctional facility employees and inmates or detainees, regardless of whether the alleged victim has consented to such activity, if the alleged victim believes the activity is connected to the terms of incarceration or detention. A charge of this offense can cause profound damage to a person’s career and life, and it requires the assistance of a knowledgeable Washington sex crimes attorney.

Types of Offenses

Custodial sexual misconduct may occur in two sets of circumstances. The first occurs between an inmate or resident of a municipal, county, or state correctional facility; and an individual employed or contracted by the facility. The state must first prove that the sexual activity took place, and then prove one of the following: that the defendant had, at the time the offense occurred, influence over the conditions of the alleged victim’s incarceration; or that the alleged victim reasonably believed the defendant had such influence.

The second set of circumstances that may permit a charge of custodial sexual misconduct occurs between a law enforcement officer and a person who is under arrest, under detention, or in the officer’s care. This part of the statute does not require proof of any additional influence or duress on the part of the law enforcement officer.

Defense to Custodial Sexual Misconduct

Under no circumstances does state law allow the alleged victim’s consent as a defense to prosecution. The imbalance of power between the defendant and the alleged victim is presumed to negate consent. A defendant must challenge the state’s evidence by noting investigative errors and challenging evidence.

State law allows one specific defense to a charge of custodial sexual misconduct. A defendant may claim, as an affirmative defense and by a preponderance of evidence, that the alleged sexual activity resulted from “forcible compulsion” by the alleged victim. In other words, it is a defense to prosecution that an inmate or detainee raped or assaulted the defendant.

First Degree Custodial Sexual Misconduct

Custodial sexual misconduct in the first degree occurs when people described above engage in sexual intercourse, defined as penetration of the genitals or anus of one person by the genitals of another person, or by another appendage or foreign object. This is a class C felony, punishable by up to five years in prison.

Second Degree Custodial Sexual Misconduct

A second degree offense involves sexual contact rather than intercourse, defined as contact with another person’s genitals or anus for the purpose of sexual arousal. This is a gross misdemeanor, with a maximum penalty of one year in county jail.

If you facing a charge of custodial sexual misconduct, an experienced Washington criminal defense lawyer can help. I have protected the rights of defendants in criminal cases throughout Washington. Prosecutions in cases like these often turn on the credibility and reliability of the witnesses. I have obtained substantially reduced sentences, acquittals, and dismissals for clients in cases like these. Contact us today online or at (888) 312-3093 for a free and confidential consultation.