State v. J.W., 2026 Wash. App. LEXIS 283 (Wash. Ct. App. 2026)
The Washington Appeals Division 2 reversed a conviction involving allegations of an 11-year-old child charged with attempted rape of a child, finding that the state failed to produce clear and convincing evidence that the child was capable of committing a criminal sexual act. The court stated in relevant part:
“A child of at least 8 years and younger than 12 years is presumed incapable of committing a crime. RCW 9A.04.050. This presumption, known as “‘the infancy defense,’” protects “‘individuals of tender years who are less capable than adults of appreciating the wrongfulness of their behavior.’” State v. Ramer, 151 Wn.2d 106, 114, 86 P.3d 132 (2004) (quoting State v. Q.D., 102 Wn.2d 19, 23, 685 P.2d 557 (1984)). The State may rebut the infancy defense by proving, through clear and convincing evidence, that the child had “sufficient capacity to understand the act or neglect, and to know that it was wrong” at the time that they committed the act. RCW 9A.04.050; State v. J.P.S., 135 Wn.2d 34, 37-38, 954 P.2d 894 (1998).
. . . .
Of particular concern in this circumstance is the insufficient evidence showing that JW appreciated that his touching of RNW was sexual in nature as opposed to an ordinary offensive touching. Rape is sexual crime, and the State presented little evidence of JW’s knowledge of the quality of a sexual assault, as opposed to non-sexual assault.
. . . .
The lay testimony that was presented by interested parties in this case, absent additional evaluations that offer insight into JW’s capacity to possess criminal intent, was insufficient to overcome the presumption that JW lacked the capacity to commit attempted rape of a child in the first degree. Given the greater challenge of determining capacity in cases involving sex crimes and the minimal evidence produced at the superior court, we hold that no rational trier of fact could have found, by clear and convincing evidence, that JW had capacity to commit a criminal sexual assault.”
