When the words listed in this section appear in this chapter, they shall have the following meaning unless a different meaning is clearly intended.
(a) 
“Accessory”
means a person who aids, abets, commands, or counsels another in the commission of a crime.
(b) 
“Consent”
means that at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse.
(c) 
“Forcible Compulsion”
means physical force that overcomes resistance, or a threat, expressed or implied, that places a person in fear of death or physical injury to themself or another person, or in fear that they or another person will be harmed.
(d) 
“Married”
means one who is legally married to another.
(e) 
“Mental Incapacity”
is the condition existing at the time of the offense that prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance, or from some other cause.
(f) 
“Minor”
means a person under eighteen years of age.
(g) 
“Physically Helpless”
means a person who is unconscious or for any other reason is physically unable to communicate an unwillingness to an act.
(h) 
“Position of Trust or Authority”
means, but is not limited to, the special authoritative or confidential relationships relating to the provision of education, health care, any kind of counseling, coaching, religious advice, public safety services, or other professional services.
(i) 
“Sexual Intercourse”
(1) 
Has its ordinary meaning and occurs upon any penetration, however slight; and
(2) 
Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes; and
(3) 
Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
(j) 
“Sexual Motivation”
means that one of the purposes for which the defendant committed the crime was for their sexual gratification.
(k) 
“Sexual Touching” or “Sexual Act”
means any touching of the sexual or other intimate parts of a person done for the purpose of arousing or gratifying the sexual desire of any person, or for the purpose of abusing, humiliating, harassing, or degrading another person.
(l) 
“Sexually Explicit Conduct”
means any actual or simulated sexual act.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017 created this new chapter on sex crimes. Previously, the crimes of rape and indecent liberties existed as Sections 5.01.08 and 5.01.09 under Chapter 5.01 Offenses Against the Person. This new chapter expanded the crime of rape into degrees and added several other sex-related crimes that were previously not listed in the PGST Criminal Code; Res. 20-A-019, 2/10/2020 added definitions for minor, position of trust or authority, sexual motivation, sexual touching, and sexually explicit conduct; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
(a) 
In order to convict a person of any rape, sex crime, public indecency, or prostitution offenses, it shall not be necessary that the testimony of the alleged victim be corroborated.
(b) 
Evidence of the victim’s past sexual behavior, including but not limited to the victim's marital history, divorce history, or general reputation for promiscuity, non-chastity, or sexual conduct contrary to community standards is inadmissible on the issue of credibility, and it is inadmissible to prove the victim's consent except as provided in subsection C of this section. However, when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when past behavior is material to the issue of consent, then evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.
(c) 
In any prosecution for the crime of rape, or for an attempt to commit rape, or for an assault with an intent to commit rape, evidence of the victim's past sexual behavior, including but not limited to the victim's marital behavior, divorce history, or general reputation for promiscuity, non-chastity, or sexual conduct contrary to community standards is not admissible if offered to attack the credibility of the victim, but it is admissible on the issue of consent only under the following procedure:
1. 
A written pretrial motion shall be made by the defendant to the Court and prosecutor stating that the defense has an offer of proof of the evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim;
2. 
The written motion shall be accompanied by an affidavit or affidavits in which the offer of proof shall be stated;
3. 
If the Court finds that the offer of proof is sufficient, the Court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed except to the necessary witnesses, the defendant, counsel, and those who have a direct interest in the case or in the work of the Court.
4. 
At the conclusion of the hearing, if the Court finds that the evidence the defendant is offering regarding the past sexual behavior of the victim is:
(i) 
Relevant to the issue of the victim's consent;
(ii) 
Not inadmissible because its probative value is subsequently outweighed by the probability that its admission will create a substantial danger of undue prejudice; and
(iii) 
Imperative to the defendant’s right to a fair trial in that exclusion of the evidence would result in denial of substantial justice to the defendant, then
the Court shall make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence under the order of the Court.
5. 
Nothing in this section shall be construed to prohibit cross-examination of the victim on the issue of past sexual behavior, but the Court may require a hearing under subsection C of this section concerning such evidence.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
In any prosecution under this chapter in which lack of consent is based solely upon the victim’s mental incapacity or upon the victim being physically helpless, it is a defense that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. The defendant has the burden or proof by a preponderance of the evidence.
In any prosecution under this chapter in which the offense or degree of the offense depends on the victim's age, it is no defense that the perpetrator did not know the victim's age, or that the perpetrator believed the victim to be older. It is a defense that at the time of the offense the defendant reasonably believed the alleged victim to be older based upon declaration as to age by the alleged victim. The defendant has the burden of proof by a preponderance of the evidence.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) 
Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
(b) 
Kidnaps the victim; or
(c) 
Inflicts serious physical injury; or
(d) 
Unlawfully enters into the building or vehicle where the victim is situated.
Rape in the first degree is a felony 1. The Court shall not grant a deferred sentence to any person convicted of rape in the first degree, except for the purpose of commitment to an inpatient treatment facility.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:
(a) 
By forcible compulsion; or
(b) 
When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.
Rape in the second degree is a felony 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degree, such person engages in sexual intercourse with another person:
(a) 
Where the victim did not consent to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct; or
(b) 
Where there is a threat of substantial unlawful harm to property rights of the victim.
Rape in the third degree is a felony 2.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve (12) years old and the perpetrator is at least twenty-four (24) months older than the victim.
Rape of a Child in the first degree is a felony 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; Res. 20-A-019, 2/10/2020 changed the name of this violation from Statutory Rape to Rape of a Child.)
A person is guilty of rape of a child in the second degree when the person has sexual intercourse with another who is at least twelve (12) years old but less than fourteen (14) years old and the perpetrator is at least thirty-six (36) months older than the victim.
Rape of a Child in the second degree is a felony 2.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; Res. 20-A-019, 2/10/2020 changed the name of this violation from Statutory Rape to Rape of a Child.)
A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is a least fourteen (14) years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight (48) months older than the victim.
Rape of a Child in the third degree is a felony 2.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; Res. 20-A-019, 2/10/2020 changed the name of this violation from Statutory Rape to Rape of a Child.)
A person is guilty of child molestation if that person knowingly engages in a sexual act with a minor who is under the age of sixteen (16) and the person engaging is at least four (4) years older than the minor.
Child Molestation is a felony 2.
(Port Gamble S’Klallam Law and Order Code. Res. 20-A-019, 2/10/2020 created new language for the violation of child molestation; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of luring if that person:
(a) 
Entices, orders, lures, or persuades a child under the age of sixteen (16) or a person with a developmental disability into any area, structure, vehicle, boat, or other place that is obscured from or inaccessible to the public with a sexual motivation.
Luring is a misdemeanor 1, unless the offender has previously been convicted of a felony sexual offense or has previously been convicted under this section or a similar law in any jurisdiction, in which case luring is a felony 2. Upon conviction of luring, the offender may be required by the Court to undergo medical evaluation and treatment. The Court may order this in addition to or instead of any other sentence imposed by the Court.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; Res. 20-A-019, 2/10/2020 added language to this section and changed the title from Child Molestation to Luring; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
Any person who knowingly engages in or causes or attempts sexual touching, as defined in this section, with or by another person in any one of the following circumstances commits the crime of abusive sexual touching:
(a) 
By using force against the other person;
(b) 
By in any way threatening or causing fear in the other person;
(c) 
When the other person is a child under the age of thirteen (13);
(d) 
When the other person is unconscious or physically or mentally incapable of declining participation or communicating unwillingness to engage in sexual activity for any reason including, but not limited to, physical handicap, mental disability, alcohol, or drug intoxication;
(e) 
When the defendant is in a position of trust or authority with respect to the other person, and takes advantage of that position to cause sexual touching; or
(f) 
When the defendant is related to the victim as an ancestor, descendant, or sibling, aunt, uncle, niece, nephew, or first cousin.
Abusive sexual touching is a felony 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
A person is guilty of indecent exposure if that person, for the purpose of arousing or gratifying the person’s own sexual desire or the sexual desire of any person, expose’s their genitals under circumstances in which the person knows the conduct is unwanted and likely to cause reasonable affront or alarm.
Indecent exposure is a misdemeanor 2 unless such person exposes themself to a person under the age of fourteen (14) years, in which case indecent exposure is a misdemeanor 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; Res. 20-A-019, 2/10/2020 created new language for this section and changes the title from Public Indecency to Indecent Exposure; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, that person knowingly views, photographs, or films another person without that person’s knowledge and consent while the person being viewed, photographed, or filmed is in a place where they would have a reasonable expectation of privacy, whether in a public or private place.
Voyeurism is a Misdemeanor 1. If a person is convicted of a violation of this section, the Court may order the destruction of any photograph, film, digital image, videotape, or any other recording of an image that was made by the person in violation of this section.
(Port Gamble S’Klallam Law and Order Code. Res. 20-A-019, 2/10/2020 created this new section; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of Sexually Explicit Communication with a Minor if, for the purpose of arousing or gratifying the sexual desire of any person, that person communicates about sexually explicit conduct with a minor or with someone that person believes to be a minor.
Sexually Explicit Communication with a Minor is a misdemeanor 1.
This section does not apply to a minor who communicates about sexually explicit conduct with another consenting minor who is fourteen years of age or older.
(Port Gamble S’Klallam Law and Order Code. Res. 20-A-019, 2/10/2020 created this new section; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of Possession or Viewing of Child Pornography if that person possesses or intentionally views digital or printed matter depicting a minor engaged in sexually explicit conduct.
Possession or Viewing of Child Pornography is a felony 2.
For the purposes of determining whether a person intentionally viewed digital or printed matter depicting a minor engaged in sexually explicit conduct, the Court shall consider the title, text, and content of the matter. For digital images, the Court may consider the internet history, search terms, thumbnail images, downloading activity, expert computer forensic testimony, the number of images, the defendant’s access to and control over the electronic device and its contents, or any other relevant evidence. The Tribe must prove beyond a reasonable doubt that the viewing was initiated by the user of the device where the viewing occurred.
This section does not apply to a minor who intentionally views digital or printed matter depicting themself or depicting a minor fourteen years of age or older who knowingly and willingly engaged in sexually explicit conduct and consented to the creation of the depiction without coercion.
(Res. 20-A-019, 2/10/2020; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of prostitution if such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. Fees include money, property, goods, or services, or other things of value.
Prostitution is a misdemeanor 2.
It is a complete defense to the charge of prostitution if the person who engages in sexual conduct in return for a fee is under eighteen (18) years old.
(Port Gamble S’Klallam Law and Order Code. Res. 84 A 03, 2/14/1984 amended this section to define and expand the crime of prostitution. The mandatory pre-sentence evaluation was passed 6/14/1988; amended by Res. 05-A-054, 6/14/2005. This was Section 5.04.04 under Chapter 5.04 Offenses Against the Community Peace, Morals, Safety, and Welfare until 1/23/2017; Res. 17-A-010, 1/23/2017, moved this section to become a part of new Chapter 5.07 on Sex Crimes.)
In any prosecution for prostitution, the sex of the parties or prospective parties to the sexual conduct engaged in, contemplated, or solicited is immaterial, and it is not a defense that:
(a) 
Such persons were the same sex; or
(b) 
The person who received, agreed to receive, or solicited a fee was a male and the person who paid or agreed or offered to pay such fee was female.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017)
For the purposes of Sections 5.07.14, 5.07.15, and 5.07.16, the following definitions apply:
(a) 
“Advances Prostitution.”
A person “advances prostitution” if, acting other than as a prostitute or as a customer thereof, that person causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house, room, vehicle, or other space for an act of prostitution or as a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.
(b) 
“Profits From Prostitution.”
A person “profits from prostitution” if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, that person accepts or receives money or other property under an agreement or understanding with any person whereby they participate or plans to participate in the proceeds of prostitution activity.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of promoting prostitution in the first degree if that person knowingly:
(a) 
Advances prostitution by compelling a person by threat or force to engage in prostitution or profits from prostitution that results from such threat or force; or
(b) 
Advances or profits from prostitution of a person less than eighteen (18) years old.
Promoting prostitution in the first degree is a felony 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of promoting prostitution in the second degree if that person knowingly:
(a) 
Profits from prostitution; or
(b) 
Advances prostitution.
Promoting prostitution in the second degree is a felony 2.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of permitting prostitution if, having possession or control of premises, vehicle, or other space that they know is being used for prostitution purposes, that person fails without lawful excuse to make reasonable effort to halt or abate such use.
Permitting prostitution is a misdemeanor 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; amended by Res. 23-A-019, 1/24/2023, to remove gendered pronouns.)
A person is guilty of sex trafficking if, that person knowingly:
(a) 
Recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
(b) 
Benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of section (a) above, knowing, or, except where the act constituting the violation of section (a) above is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion defined in section (c) below, or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.
(c) 
The term “coercion” for the purposes of this section means:
(1) 
Threats of serious harm to or physical restraint against any person;
(2) 
Any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or
(3) 
The abuse or threatened abuse of law or the legal process.
(d) 
The term “participation in a venture” for the purposes of this section means knowingly assisting, supporting, or facilitating a violation of subsection (a).
(e) 
The term “commercial sex act” for the purposes of this section means any sex act, on account of which anything of value is given to or received by any person.
(f) 
Sex trafficking is a felony 1.
(Port Gamble S’Klallam Law and Order Code. Res. 17-A-010, 1/23/2017; amended by Res. 23-A-019, 1/24/2023, to change the definition of the offense of Sex Trafficking to mirror the federal statutory language in 18 U.S.C. § 1591(a) for purposes of implementing VAWA 2022.)