No Lack of Consent Required – Rape in the Third Degree Laws Have Changed

Many people make the connection that rape or sexual assault is occurring when the victim is clearly expressing lack of consent. They are saying “no” to the sexual act. However, there are changes to the law that says no such lack of consent needs to be expressed.

RCW 9A.44.060 formerly read as follows:

  1. A person is guilty of rape in the third degree when, under circumstances no constituting rape in the first or second degrees, such person engages in sexual intercourse with another person:
  2. Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct; or

The italicized words are now stricken. Lack of consent – saying no or physically resisting – is no longer required for a rape in the third degree charge or conviction.

“I don’t have to say no!”

Will this make a difference in the number of Rape in the Third Degree (Rape 3) cases that get filed each year in King County? Possibly, but do not bet on it. If the alleged victim, in a police interview, admits she “didn’t say no, push him away, and had been drinking,” a prosecutor is still going to have the same concerns about a “he said-she said” contest.

These cases are still going to be fact intensive. If the alleged victim complained about forced intercourse the next day at school, or had bruises or other physical signs of assault, the prosecutor will care less that lack of consent was not clearly communicated.

Which leads to a second change in the law for Rape 3. Formerly, there was a three year statute of limitations; now there is a ten year limitations period. Why the legislature lengthened the time period is certainly open for debate, since memories lapse and integrity of evidence often fades (e.g. means of corroborating alibis). Lengthening limitation periods could provide a safe harbor for victims to get out from under a suffocating relationship wherein the victim does not feel safe to report, but may also give victims a false sense of hope that their case will actually be prosecuted seven, eight, nine or nearly ten years after the incident.

Prosecutors still prefer allegations that were swiftly reported. Only time will tell what the outcome will be for the nature and volume of Rape 3 cases with the above changes to the law. 

If you have a criminal matter and would like to consult with a lawyer, contact Jan Olson at Ellis, Li & McKinstry, PLLC. You can reach Jan by calling (206) 682-0565 or by e-mail at