Revised Code of Washington
Wash. Rev. Code § 9.68A.110 (2026)
Certain defenses barred, permitted
✓ current as of May 2026
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*** CHANGE IN 2026 *** (SEE 5105-S.SL) ***
(1) In a prosecution under RCW 9.68A.040, it is not a defense that the defendant was involved in activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses. Law enforcement and prosecution agencies shall not employ minors to aid in the investigation of a violation of RCW 9.68A.090 or 9.68A.100 through 9.68A.102, except for the purpose of facilitating an investigation where the minor is also the alleged victim and the:
(b) Minor's aid in the investigation involves only telephone or electronic communication with the defendant.
(2) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, or 9.68A.080, it is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense the defendant was not in possession of any facts on the basis of which he or she should reasonably have known that the person depicted was a minor.
(3) In a prosecution under RCW 9.68A.040, 9.68A.090, 9.68A.100, 9.68A.101, or 9.68A.102, it is not a defense that the defendant did not know the alleged victim's age. It is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor.
(4) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, or 9.68A.075, it shall be an affirmative defense that the defendant was a law enforcement officer or a person specifically authorized, in writing, to assist a law enforcement officer and acting at the direction of a law enforcement officer in the process of conducting an official investigation of a sex-related crime against a minor, or that the defendant was providing individual case treatment as a recognized medical facility or as a psychiatrist or psychologist licensed under Title 18 RCW. Nothing in chapter 227, Laws of 2010 is intended to in any way affect or diminish the immunity afforded an electronic communication service provider, remote computing service provider, or domain name registrar acting in the performance of its reporting or preservation responsibilities under 18 U.S.C. Secs. 2258a, 2258b, or 2258c.
(5) In a prosecution under RCW 9.68A.050, 9.68A.060, 9.68A.070, or 9.68A.075, the state is not required to establish the identity of the alleged victim unless the charged offense involves a fabricated depiction.
(a) The defendant was employed at or conducting research in partnership or in cooperation with any institution of higher education as defined in RCW 28B.07.020 or 28B.10.016, and:
(i) He or she was engaged in a research activity;
(ii) The research activity was specifically approved prior to the possession or viewing activity being conducted in writing by a person, or other such entity vested with the authority to grant such approval by the institution of higher education; and
(iii) Viewing or possessing the visual or printed matter is an essential component of the authorized research; or
(b) The defendant was an employee of the Washington state legislature engaged in research at the request of a member of the legislature and:
(i) The request for research is made prior to the possession or viewing activity being conducted in writing by a member of the legislature;
(ii) The research is directly related to a legislative activity; and
(iii) Viewing or possessing the visual or printed matter is an essential component of the requested research and legislative activity.
(7) In a prosecution under RCW 9.68A.050, 9.68A.053, 9.68A.060, 9.68A.070, or 9.68A.075 where the charged offense involves a fabricated depiction, it is not a defense that the defendant lacked knowledge of whether the fabricated depiction had been created or altered by digitization.
(8) Nothing in this section authorizes otherwise unlawful viewing or possession of visual or printed matter depicting a minor engaged in sexually explicit conduct.
[ 2024 c 88 s 3; 2011 c 241 s 4. Prior: 2010 c 289 s 17; 2010 c 227 s 8; 2007 c 368 s 3; 1992 c 178 s 1; 1989 c 32 s 9; 1986 c 319 s 3; 1984 c 262 s 10.]
Notes:
Findings—Effective date—2011 c 241: See notes following RCW 9.73.230.
Severability—1992 c 178: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1992 c 178 s 2.]
Notes of Decisions
Cited in 22
cases (1 in the last 5 years), 1991–2025 · leading case: State v. Sadler, 193 P.3d 1108 (Wash. Ct. App. 2008).
State v. Sadler, 193 P.3d 1108 (Wash. Ct. App. 2008). “In a pro se statement of additional grounds for review (SAG), [2] Sadler also argues that the statutory defense to the sexual exploitation of a minor charges, RCW 9.68A.110(3), is unconstitutionally vague as applied.”
State v. Garbaccio, 214 P.3d 168 (Wash. Ct. App. 2009). “As to Garbaccio's knowledge of the age of the persons so depicted, RCW 9.68A.110(2) sets forth the relevant legal principle: [I]t is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter: PROVIDED, That it is a defense, which…”
State v. Sutherby, 204 P.3d 916 (Wash. 2009). “Further, using each child victim to define the unit of prosecution appears inconsistent with former RCW 9.68A.110(5) (1992), which provided that "[i]n a prosecution under RCW 9.”
State v. Sutherby, 165 Wash. 2d 870 (Wash. 2009). “Further, using each child victim to define the unit of prosecution appears inconsistent with former RCW 9.68A.110(5) (1992), which provided that “[i]n a prosecution under .”
State v. Sadler, 147 Wash. App. 97 (Wash. Ct. App. 2008). “had shown him identification proving she was over 18 went to the statutory defense for the sexual exploitation of a minor charges, RCW 9.68A.110(3). That statute required Sadler to prove that he made a reasonable bona fide attempt to ascertain the true age of the minor[ 7 ] by…”
State v. Farmer, 805 P.2d 200 (Wash. 1991). “Therefore, he maintains that because unmarried 16- and 17-year-olds are included within the statute's proscriptions, it treats them differently than married couples and, consequently, violates their right to equal protection.”
State v. Jackman, 132 P.3d 136 (Wash. 2006). “[8] A defense to the charge of communication with a minor for immoral purposes is that at the time of the offense the defendant "made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth…”
State v. Johnson, 270 P.3d 591 (Wash. 2012). “030(2), with RCW 9.68A.110(3). However, Johnson was charged with attempted promotion of commercial sexual abuse of a minor.”
State v. Garbaccio, 151 Wash. App. 716 (Wash. Ct. App. 2009). “As to Garbaccio’s knowledge of the age of the persons so depicted, RCW 9.68A.110(2) sets forth the relevant legal principle: [I]t is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter: PROVIDED, That it is a defense, which…”
State v. Gailus, 136 Wash. App. 191 (Wash. Ct. App. 2006). “In addition, such an interpretation is inconsistent with RCW 9.68A.110(5), in which the legislature expressly provides that “[i]n a prosecution under RCW .”
State v. Gailus, 147 P.3d 1300 (Wash. Ct. App. 2006). “In addition, such an interpretation is inconsistent with RCW 9.68A.110(5), in which the legislature expressly provides that, "[i]n a prosecution under RCW .”
State v. Aljutily, 149 Wash. App. 286 (Wash. Ct. App. 2009). “” In addition, RCW 9.68A.110(3) provides that in a prosecution under RCW 9.”
— Wash. Rev. Code § 9.68A.110(1) — 1 case
State v. Farmer, 805 P.2d 200 (Wash. 1991). “Therefore, he maintains that because unmarried 16- and 17-year-olds are included within the statute's proscriptions, it treats them differently than married couples and, consequently, violates their right to equal protection.”
— Wash. Rev. Code § 9.68A.110(2) — 2 cases
State v. Garbaccio, 214 P.3d 168 (Wash. Ct. App. 2009). “As to Garbaccio's knowledge of the age of the persons so depicted, RCW 9.68A.110(2) sets forth the relevant legal principle: [I]t is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter: PROVIDED, That it is a defense, which…”
State v. Garbaccio, 151 Wash. App. 716 (Wash. Ct. App. 2009). “As to Garbaccio’s knowledge of the age of the persons so depicted, RCW 9.68A.110(2) sets forth the relevant legal principle: [I]t is not a defense that the defendant did not know the age of the child depicted in the visual or printed matter: PROVIDED, That it is a defense, which…”
— Wash. Rev. Code § 9.68A.110(3) — 13 cases
State v. Sadler, 193 P.3d 1108 (Wash. Ct. App. 2008). “In a pro se statement of additional grounds for review (SAG), [2] Sadler also argues that the statutory defense to the sexual exploitation of a minor charges, RCW 9.68A.110(3), is unconstitutionally vague as applied.”
State v. Sadler, 147 Wash. App. 97 (Wash. Ct. App. 2008). “had shown him identification proving she was over 18 went to the statutory defense for the sexual exploitation of a minor charges, RCW 9.68A.110(3). That statute required Sadler to prove that he made a reasonable bona fide attempt to ascertain the true age of the minor[ 7 ] by…”
State v. Jackman, 132 P.3d 136 (Wash. 2006). “[8] A defense to the charge of communication with a minor for immoral purposes is that at the time of the offense the defendant "made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth…”
State v. Johnson, 270 P.3d 591 (Wash. 2012). “030(2), with RCW 9.68A.110(3). However, Johnson was charged with attempted promotion of commercial sexual abuse of a minor.”
State v. Farmer, 805 P.2d 200 (Wash. 1991). “Therefore, he maintains that because unmarried 16- and 17-year-olds are included within the statute's proscriptions, it treats them differently than married couples and, consequently, violates their right to equal protection.”
— Wash. Rev. Code § 9.68A.110(5) — 5 cases
State v. Sutherby, 204 P.3d 916 (Wash. 2009). “Further, using each child victim to define the unit of prosecution appears inconsistent with former RCW 9.68A.110(5) (1992), which provided that "[i]n a prosecution under RCW 9.”
State v. Sutherby, 165 Wash. 2d 870 (Wash. 2009). “Further, using each child victim to define the unit of prosecution appears inconsistent with former RCW 9.68A.110(5) (1992), which provided that “[i]n a prosecution under .”
State v. Gailus, 136 Wash. App. 191 (Wash. Ct. App. 2006). “In addition, such an interpretation is inconsistent with RCW 9.68A.110(5), in which the legislature expressly provides that “[i]n a prosecution under RCW .”
State v. Gailus, 147 P.3d 1300 (Wash. Ct. App. 2006). “In addition, such an interpretation is inconsistent with RCW 9.68A.110(5), in which the legislature expressly provides that, "[i]n a prosecution under RCW .”
State v. Ehli, 62 P.3d 929 (Wash. Ct. App. 2003).
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