¶33 (dissenting) — The majority opines a teacher defending a civil liability suit for having sex with a minor cannot raise consent as a defense and further holds a school district which attempts to investigate the incident cannot raise contributory negligence as a defense against the child who undermines the investigation.5 The majority offers two rationales: first, the criminal code does not allow consent as a defense to prosecution for sex crimes with a minor; and second, schools have a special duty to protect their students. Majority at 67.
Sanders, J.Consent
¶34 The majority is unquestionably correct that consent is not a defense to criminal prosecution for sex crimes with a minor. See RCW 9A.44.073-.096. However, merely because the criminal code prohibits a particular defense does not mean the same defense is inappropriate in the civil context. The fundamental purpose of the criminal justice system is to punish wrongdoers, with tangential benefits of deterrence, protection, and rehabilitation. The primary purpose of the civil tort system is to compensate injured persons. See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 5.1, at 124 (2d ed. 2000) (“ 'The guiding principle of tort law is to make the injured party as whole as possible through pecuniary com*80pensation.’ ” (quoting Pugel v. Monheimer, 83 Wn. App. 688, 692, 922 P.2d 1377 (1996))).6
¶35 Other states have recognized these differing purposes. In Cynthia M. v. Rodney E., 228 Cal. App. 3d 1040, 279 Cal. Rptr. 94 (1991), the parents of a 16-year-old girl sued the parents of a boy, also a minor, who impregnated the girl during consensual intercourse. The girl’s parents sought reimbursement for medical bills arising out of the birth and attendant complications with the baby. A California statute allowed suit against the parents for the willful misconduct of their child, but the court held that consensual sexual intercourse is not willful misconduct. Like that in Washington, consent in California is not a defense to criminal prosecution for rape of a child. Nevertheless, the court reasoned the civil law serves a different purpose from the criminal law, commenting “[t]here is no hard-and-fast rule as to the age at which a person attains the capacity to consent to bodily invasions.” Id. at 1045. The court quoted Prosser and Keeton: “ A minor acquires capacity to consent to different kinds of invasions and conduct at different stages in his development. Capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits.’ ” Id. (quoting Prosser and Keeton on the Law of Torts § 18, at 115 (W. Page Keeton ed., 5th ed. 1984)).
¶36 Georgia and Maryland also distinguish between consent in the criminal and civil contexts. See McNamee v. A.J.W., 238 Ga. App. 534, 537-38, 519 S.E.2d 298 (1999); Tate v. Bd. of Educ., 155 Md. App. 536, 547, 843 A.2d 890 (2004). After noting that consent is not a defense to criminal prosecution, the Maryland court held:
It is not that an underage victim cannot consent to the sexual conduct. The crime is not predicated upon the victim’s unwillingness to participate, but rather upon the societal notion that *81a child of tender years has not yet been able to form the necessary sophistication to fully comprehend the potentially adverse effects of sexual activity. We have found no authority for the proposition that the legal impediment to the defense of consent in the criminal court is equally applicable in the civil court.
Tate, 155 Md. App. at 547-48. Likewise, a New York court reasoned:
It is one thing to say that society will protect itself by punishing those who consort with females under the age of consent; it is another to hold that, knowing the nature of her act, such female shall be rewarded for her indiscretion. Surely public policy . . . will not be vindicated by recompensing her for willing participation in that against which the law sought to protect her. The very object of the statute will be frustrated if by a material return for her fall “we should unwarily put it in the power of the female sex to become seducers in their turn.” (Smith v. Richards, 29 Conn. 232[, 240 (1860)].) Instead of incapacity to consent being a shield to save, it might be a sword to desecrate. The court is of the opinion that a female under the age of eighteen has no cause of action against a male with whom she willingly consorts, if she knows the nature and quality of her act.
Barton v. Bee Line, Inc., 238 A.D. 501, 502-03, 265 N.Y.S. 284 (1933); see also LK v. Reed, 631 So. 2d 604, 607 (La. Ct. App. 1994) (“ ‘It seems anomalous to say that a person can have a right of action for damages resulting from a criminal act which he or she consented to and participated in, and without whose consent and participation the crime could not have been committed.’ ” (quoting Brunet v. Deshotels, 160 La. 285, 107 So. 111, 113 (1926) (O’Niell, C.J., dissenting)).
Contributory Negligence
¶37 Washington law holds minors responsible for contributory negligence in many contexts. See Robinson v. Lindsay, 92 Wn.2d 410, 412, 598 P.2d 392 (1979) (holding a child to an adult-standard of care when operating danger*82ous equipment); Graving v. Dorn, 63 Wn.2d 236, 238-39 & n.2, 386 P.2d 621 (1963) (concluding, after reviewing 40 Washington Supreme Court cases, that children over the age of six may be contributorily negligent); Berry v. Howe, 39 Wn.2d 235, 238, 235 P.2d 170 (1951) (“[A] boy of appellant’s age [11] and experience presents a question of fact as to his capacity for contributory negligence.”); Brown v. Derry, 10 Wn. App. 459, 464, 518 P.2d 251 (1974) (“Although a boy 16 years of age is not to be held to the same degree of care to which a person of mature years is held, he nevertheless is bound to use the reason and knowledge which he possesses and to exercise the degree of care of which he is capable.”).
¶38 The majority dismisses these cases because they do not involve sexual conduct. Majority at 69 n.l. I fail to see why a minor can be contributorily negligent for driving a snowmobile but cannot be contributorily negligent in a negligence action relating to sexual misconduct. Generally contributory negligence is a question of fact for the jury. Bauman v. Crawford, 104 Wn.2d 241, 244, 704 P.2d 1181 (1985) (“[T]he decision in this case applies only to minors 6 to 16 years of age. Generally, contributory negligence of minors in this age group is a question for the trier of fact.”).
¶39 But under the majority’s rule, a 15-year-old girl can seduce a male teacher and then sue the school district for damages, knowing she cannot be found contributorily negligent in the school district suit as a matter of law. As the New York court noted, this provides a powerful incentive to engage in sexual misconduct. We are deceiving ourselves if we think children are unable to understand the risks and potential rewards. Perhaps some are not, but that is why a jury determines this question as a matter of fact in each case. If a minor understands the nature of her action, she should share the responsibility. This does not negate the responsibility of the school district but merely allows a jury to apportion the liability among the parties. I see no reason to deviate from our standard rule on contributory negligence for minors in negligence cases involving sexual activity.
*83¶40 The majority appeals to a school’s duty to protect students. Majority at 70. Well and good. However, merely because a school must protect the children in its care doés not relieve the students of any personal responsibility for their own conduct. Children should not be allowed to take advantage of the school’s duty by forcing it to pay damages for injuries invited by the student or injuries which the district could have prevented but for obstruction by the student. Such a rule is inequitable and excuses all manner of mischief. Today the school district is liable for a teacher’s malfeasance; tomorrow it will be liable for another student’s sexual advances. In either case the school district is breaching its duty to protect. Under the majority’s rule, it does not matter if the “victim” consented to, or even initiated, the sexual activity. And it doesn’t matter that the student actively undermined the district’s good faith investigation to rectify the problem. A jury should be allowed to determine, in each case, whether the minor had the capacity to understand the nature of her act and apportion liability accordingly.
|41 This school district did take steps to protect the female student. School officials met with the girl and her parents to determine if anything untoward was occurring with the teacher. The girl, however, allegedly lied about her involvement with the teacher, thwarting the school district’s efforts to protect her. She may be below the age of consent, but not below the age of honesty. Yes, school districts must protect their students, but students must cooperate. If a student undermines school officials’ actions to protect her, she must bear at least some of the fault for resulting injury. If the girl lied, this is contributory negligence on her part and a proper defense for the school district.7
¶42 The majority is unclear whether its newly found rule is limited to situations involving students and teachers or *84if it also applies when there is no special relationship between the parties. See majority at 64-65, 70-71. If the majority’s holding embraces the latter, then it is fraught with disaster. Minor prostitutes could sue for damages without facing affirmative defenses, as could a junior high student having sexual contact with a high school student. The list goes on. If we divorce civil liability from personal responsibility, then the limits of the former are dictated only by the imaginations of the minors perpetrating or participating in these acts.
¶43 I would answer the certified question in the affirmative and dissent.
I accept Justice Madsen’s well-reasoned distinction between defenses to intentional vis-á-vis negligent conduct, however as to the former, I would recognize the availability of consent as a defense to civil liability.
Despite the majority's statement that civil law is intended to punish, majority at 68, Washington law disfavors punitive damages absent specific statutory authorization. See Dailey v. N. Coast Life Ins. Co., 129 Wn.2d 572, 575, 919 P.2d 589 (1996).
The majority feels obliged to note the fact of Christensen’s lying is in dispute. Majority at 71. Such a claim is irrelevant to the majority’s blanket rule, and hence I am unsure why the majority takes the trouble to mention it.