What Is Sexual Misconduct Understanding Sexual Misconduct Laws in Washington

The term “sexual misconduct” can refer to conduct that is inappropriate, exploitative or unlawful of a sexual nature. The definition can vary depending upon the circumstances, the relationship between the individuals involved, their ages, whether or not consent was given, and the governing laws.

While some forms of sexual misconduct are illegal and can lead to severe consequences, in Washington, each of the various offenses is listed separately by statute. These offenses include sexual misconduct with a minor, custodial, rape, indecent liberties, child molestation, and voyeurism.

Accusations in Vancouver need to be taken seriously. In many cases the simple accusation of sexual misconduct is never clearly defined, thereby leaving the individual accused to wonder what crime he or she is being charged with and what evidence the prosecutor has.

What Does Sexual Misconduct Mean?

Each type of sexual misconduct is defined by and is a crime by the terms of a specific Washington criminal statute.

Each of the sexual offenses in Washington have their own specific elements that must be proven in order to obtain a conviction. Instead of a general definition of sexual misconduct, there are specific definitions of these offenses in the Washington criminal code.

Depending on the circumstances, an allegation could be one of the following:

  • Sexual contact without lawful consent
  • Sexual intercourse under circumstances prohibited by law
  • Sexual conduct involving a minor
  • Sexual conduct involving a student
  • Sexual conduct involving a person in custody
  • Sexual conduct involving a person in custody
  • Sexual exploitation
  • Sexual grooming
  • Indecent exposure
  • Voyeurism
  • Sexual conduct involving a person who cannot legally consent

For example, sexual contact is defined as intentional touching for purposes of sexual gratification of another’s sexual or intimate parts.

Application of the statute to the specific facts of the incident reported would determine whether or not a crime had been committed.

Is Sexual Misconduct a Crime in Washington?

It can be.

Likely it is not a crime but rather another more specific sex-offense name in Washington’s laws.

Sex-offense laws are contained in RCW Chapter 9A.44 and include, by way of example, sexual conduct amounts for the crimes of rape, rape of a child, etc. as well as child molestation, sexual misconduct with a minor, indecent liberties, voyeurism and custodial sexual misconduct.

Much sexual misconduct will also constitute other crimes under the Washington Criminal Code.

To accurately determine if the actions of another constitute criminal sex offense(s), the specific actions need to be analyzed versus merely referred to by a particular term.

What Is Sexual Misconduct With a Minor?

Washington specifically criminalizes certain sexual conduct involving minors.

Sexual Misconduct With a Minor in the First Degree

RCW 9A.44.093 Sexual misconduct with a minor in the first degree. Acts with greater severity than required for sexual misconduct with a minor in the second degree are prohibited when one of the parties is under 18 years old and the other is 18 or older and at least 16 but less than 18 years old and in certain situations of age, relationship or supervisory responsibility.

This statute lists out all of the different circumstances in which conduct of this nature would be illegal as Sexual Misconduct with a Minor (such as a teacher and student, a school employee and student, a foster parent and child, etc.).

It matters because each of the different relationships between minors and older people is treated differently under the law.

Sexual Misconduct With a Minor in the Second Degree

RCW 9A.44.096 defines the crime of Sexual Misconduct with a Minor in the Second Degree by describing circumstances under which sexual contact with a minor occurs.

The statute includes circumstances involving:

  • A significant relationship
  • Abuse of a supervisory position
  • Certain school employee/student relationships
  • Certain foster parent/foster child relationships

These are set out by the statutes and must be considered by the prosecution in determining charges.

No.

In some sex offenses, consent may or may not be an issue, depending on the particular offense and the facts and circumstances of the case.

This means even though both parties agreed to sex, in such cases, consent is not a defense to charges under these statutes.

Other crimes define the element of consent, age, capacity, amount of force or violence used, degree of coercion used to commit the crime, or even the nature of the relationship between the parties to the crime.

Just because both parties agreed to the activity in question does not necessarily mean that no criminal activity occurred and that therefore an investigation of the situation need not be conducted.

What Is Custodial Sexual Misconduct?

The state of Washington has developed laws relating to sexual conduct of persons in custody.

Custodial Sexual Misconduct in the First Degree

RCW 9A.44.160 describes the conduct for first degree custodial sexual misconduct and sets forth the circumstances under which sexual intercourse with another is so conducted.

The law includes circumstances involving:

  • A person residing in a correctional facility
  • A person under correctional supervision
  • Certain correctional employees or contract personnel
  • A person detained, under arrest, or in law enforcement custody
  • A law enforcement officer

First-degree custodial sexual misconduct is a Class B felony and contains the condition that consent is not a defense to the crime in RCW 9A.44.160.

Custodial Sexual Misconduct in the Second Degree

Second-degree custodial generally is sexual contact rather than sexual intercourse in circumstances covered by the statute.

The same charge of custodial sexual misconduct in the second degree is a Class C felony. Consent is not a defense in either case.

Sexual Misconduct Involving Students

“Sexual misconduct” can also have a very specific meaning in the Washington state education rules.

These acts include sexual advances; sexual contact and intercourse; and other forms of sexually exploitive acts including grooming a student for such misconduct.

This creates an important distinction:

Allegations do not always result in a criminal investigation.

A person may face:

  • A criminal investigation
  • School or professional disciplinary proceedings
  • Employment consequences
  • Licensing consequences
  • Civil claims
  • More than one type of proceeding at the same time.

Application of the above rules will depend upon the circumstances and the position of the individual.

What Is Sexual Grooming?

This is generally considered to be the behavior of establishing trust of lowering inhibitions or gaining access to a person for eventual sexual purposes.

Grooming of a Student in a School Setting – Under Washington education regulations regarding sexual misconduct, grooming of a student or the student’s family is considered to be befriending in order to decrease inhibitions so that the accused can have a sexual relationship with the student.

Allegations of grooming should be taken very seriously as they can be investigated through communication over a long period of time.

Evidence can include:

  • Text messages
  • Social media messages
  • Emails
  • Phone records
  • Photos
  • Videos
  • Online conversations
  • Witness statements
  • School or employment records

How Is Sexual Misconduct Different From Sexual Assault?

It is common for people to refer to sexual assault when discussing sexual misconduct; however, the two terms are frequently used interchangeably when in reality they can be defined differently.

Sexual assault refers to unwanted or unlawful sexual contact or conduct.

As opposed to the general term of sexual assault, Washington criminal law sets forth specific statutory offenses.

These offenses include for example:

  • Rape
  • Rape of a child
  • Child molestation
  • Indecent liberties
  • Voyeurism
  • Sexual misconduct with a minor
  • Custodial sexual misconduct

These different types of sexual misconduct are defined in Washington’s sex-offense chapter and contain separate definitions and requirements for each offense of sexual misconduct.

What Is the Difference Between Sexual Misconduct and Rape?

This depends upon the specific conduct at issue as well as the elements for the offense with which the defendant is charged.

Washington has defined different degrees of Rape, among other sexual offenses, based on varying circumstances, including Forcible Compulsion, or the victim’s Incapability to Consent Due to Physical Helplessness or Mental Incapacitation, as well

  • Forcible compulsion
  • The victim’s inability to consent
  • Physical helplessness
  • Mental incapacitation
  • Certain relationships involving authority or care
  • Other circumstances established by statute

First-degree rape describes a certain number of cases of rape where the conduct constitutes either (i) forcible compulsion or (ii) the act described in RCW 9A.44.100(1)(d) (i.e., kidnapping in circumstances independent of the act or serious physical injury to another). Also included within first-degree rape are situations where the accused gave the victim a drug or substances without his or her knowledge or consent with the intent to or with the result that the victim was incapable of appraising the full consequences of his or her conduct and thereby was incapable of consent. First-degree rape is a Class A felony.

Because sexual misconduct can be charged as a number of different offenses (each with different elements) an accusation of sexual misconduct will need to be carefully considered.

What Evidence Can Be Used in a Sexual Misconduct Case?

Sexual offense investigations often involve different types of evidence.

Investigators may examine:

  • Digital Evidence
  • Text messages
  • Social media conversations
  • Emails
  • Direct messages
  • Photos
  • Videos
  • Location information
  • Phone records
  • Computer records
  • Physical Evidence

Depending on the allegations, investigators may examine:

  • Clothing
  • DNA
  • Medical evidence
  • Photographs
  • Other physical evidence
  • Witness Evidence

Investigators may interview:

  • The reporting person
  • Friends
  • Family members
  • Coworkers
  • Teachers
  • Medical professionals
  • Police officers
  • Other witnesses
  • Statements

Even statements made by the accused can be used as evidence against him or her.

When allegations of misconduct are made it is wise to think very carefully before speaking with an investigator concerning the allegation(s) prior to consulting with an attorney.

Can Someone Be Charged Based Only on an Accusation?

An accusation can start an investigation by the police but in the end a charge must be laid based on sufficient evidence and satisfying the applicable charges.

An allegation itself is not a conviction.

Prosecutors can seek and gather more evidence including asking other witnesses to give evidence, collecting digital evidence, examining past communications and other relevant material.

One additional important point is that waiting until you are arrested for a sexual offense is not the best approach.

What Should You Do If You Are Accused of Sexual Misconduct?

Even if nobody has charged you with sexual misconduct, it’s still very serious that someone has accused you of it.

Do not contact the accuser about the allegations

Also, be extremely cautious not to enter into any sort of negotiations or try to resolve the matter directly with the accuser. You may be violating a no-contact order or other restriction(s).

Do not delete messages or other evidence

Do not destroy or alter any potential evidence including written communications, photographs, videos, etc. Including text messages and records on cell phones.

Do not discuss the case publicly

Don’t discuss your sexual misconduct allegations online or with bystanders.

Do not give an interview without understanding your rights

If a detective wishes to speak with you regarding charges for sexual misconduct, you should seek the advice of an attorney before speaking with them regarding the allegations against you.

Contact a criminal defense attorney

Your attorney can help you understand whether your situation presents a criminal investigation, an employment or professional matter, or a combination of all.

What If You Are Being Investigated but Have Not Been Charged?

You don’t have to wait until you’ve been arrested or formally charged with a crime to get in touch with a lawyer.

A sexual misconduct investigation may begin with:

  • A complaint
  • A school report
  • A workplace report
  • A police report
  • A child welfare referral
  • A report to another agency
  • A complaint from another person

Your attorney will explain the nature of the inquiry or investigation to you and advise you as to how you should conduct yourself with investigators.

An attorney can help you preserve important evidence in the case and identify potential defenses before you lose memories of important details or the relevant documents are lost.

What Defenses May Apply in a Sexual Misconduct Case?

There is no single defense to a sexual misconduct charge.

Depending on the specific charge(s) and the circumstances, a variety of possible defenses could apply.

  • The conduct did not occur
  • Mistaken identity
  • Lack of required intent
  • Lack of evidence
  • Consent, when legally relevant
  • The alleged conduct does not satisfy an element of the charged offense
  • False or inaccurate allegations
  • Unreliable witness testimony
  • Problems with digital evidence
  • Constitutional violations
  • Unlawful searches or seizures
  • Improperly obtained statements
  • Insufficient evidence

The appropriate defense would depend upon the specific charges that have been filed, as well as the relevant evidence that is available to support or refute those charges.

What Are the Potential Consequences of a Sexual Misconduct Charge?

The consequences depend on the specific offense.

A sex offense can result in the following consequences for a conviction:

  • Jail or prison
  • Fines
  • Probation
  • Court-ordered restrictions
  • No-contact orders
  • Restrictions involving certain people or locations
  • Professional consequences
  • Employment consequences
  • Immigration consequences in some circumstances
  • Sex offender registration for qualifying offenses

Offenses that require Sex Offender Registration are listed and explained with reference to the specific offense, the conviction offense and the applicable statute(s).

Note that some of the above sexual misconduct offenses may be classified as felonies and therefore subject to more severe fines and penalties.

For example, first-degree custodial sexual misconduct is classified as a Class B felony, while second-degree custodial sexual misconduct is a Class C felony.

Can a Sexual Misconduct Accusation Affect Your Job?

Yes.

The consequences may extend beyond a criminal courtroom.

Depending on your profession, an allegation of sexual misconduct could impact your career in a number of ways:

  • Workplace investigation
  • Suspension
  • Termination
  • Professional licensing review
  • School disciplinary action
  • Restrictions on working with children or vulnerable people

Even if no conviction results from the criminal case, these consequences can sometimes continue and even be increased by the circumstances of the employment or other matter under investigation.

Whether or not a criminal case is brought against you, your employment, professional license or school could be affected by a sexual misconduct allegation. If so, you will require advice on both the criminal case and the separate administrative or employment matter.

What Happens After a Sexual Misconduct Report?

I differentiate between the different stages of a sexual misconduct investigation:

Report → Investigation → Evidence Collection → Interviews → Charging Decision → Arraignment → Discovery → Pretrial Motions → Negotiations or Trial.

The investigation may or may not lead to a criminal prosecution.

An attorney can explain the current status of your case and where it is likely to go from here.

Sexual misconduct allegations can develop quickly.

A defense attorney can begin evaluating:

  • What exactly has been alleged
  • Which statute may apply
  • Whether a crime has actually been alleged
  • What evidence investigators possess
  • Whether additional evidence exists
  • Whether statements were lawfully obtained
  • Whether a search or seizure was lawful
  • Whether witnesses may provide relevant information
  • Whether employment or professional consequences are also involved

While an attorney is not able to guarantee a certain outcome in a case, early involvement helps defend the charges before serious decisions are made.

Sexual Misconduct Defense in Vancouver, WA

The legal consequences of alleged conduct depend upon the specific acts which have been alleged, the applicable statute(s) and the evidence the state has to support a conviction for each count alleged in the indictment or information.

The attorneys at Mcaleer Law aggressively defend clients facing serious criminal charges including those that are investigated as possible sex crimes.

If you are facing a sexual misconduct investigation or criminal charge in Vancouver, WA, Mcaleer Law can help you understand your legal options and prepare a defense.

Contact Mcaleer Law to discuss your situation with a Washington criminal defense attorney.