UPDATE: A Rather Obvious — but Necessary — Element of a Sex Crime

Blogger’s Note: Rebecca wrote a comment on this entry posing an interesting question (see below). I have updated the entry to include an answer.

As many of you that have served on juries know, prosecutors have to prove a set number of elements for the jury to deliver a guilty verdict in a criminal case.

Some of the elements are obvious. Here’s an example. In a bank robbery, prosecutors must prove (according to the Revised Code of Washington), among other things, that the person was armed with a deadly weapon.

From what I’ve seen, our legal system spares no wiggle room when it comes to proving a crime beyond a reasonable doubt. And, in the arena of most sex cases, here’s an obvious one: that the defendant isn’t married to the victim.


Which cases does this element affect? Mainly on child rape cases, but also rape in the third degree (thus, there are statutes that cover charges against a husband or wife accused of rape).

Many times, this element is so plainly apparent, that the law enforcement officer who books the suspect won’t put it into a probable cause statement, and prosecutors must supplement the probable cause for the judge to show in fact, defendant and victim have never been married.

I emailed Justin Zaug, Kitsap County deputy prosecutor who often charges cases for the special assault unit, and this is what he said about that particular element:

“Basically, (the marriage element) a formality that gets missed by law enforcement because it is so self-evident. Still, we have to prove the obvious.”

There is some good news with this element, however, Zaug added:

“Historically, this is one element we are able to prove without fail,” Zaug said.

2 thoughts on “UPDATE: A Rather Obvious — but Necessary — Element of a Sex Crime

  1. Do you really mean to say that is legal for a husband to force his wife (or vice versa) to have sex and it isn’t considered rape?

  2. “…Some of the elements are obvious. Here’s an example. In a bank robbery, prosecutors must prove (according to the Revised Code of Washington), among other things, that the person was armed with a deadly weapon….”

    In a sexual assault…if the rapist had AIDS, wouldn’t that constitute…”…armed with a deadly weapon…”?
    Sharon O’Hara

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