¶14 (dissenting) — The majority holds first degree statutory rape under former RCW 9A.44.070(1) (1986) and first degree rape of a child under RCW 9A.44.073(1) are legally comparable crimes. I disagree.
Sanders, J.¶15 To conclude statutory rape and rape of a child are comparable, the majority reasoned, “it is simply inconceivable that the legislature would expect that children 10 years old or less would marry,” and therefore, “[n]onmar-riage is an implied element of the crime of first degree statutory rape.” Majority at 399. This is unsupported. The majority dismisses In re Personal Restraint of Thompson, 141 Wn.2d 712, 10 P.3d 380 (2000), where we compared the elements of first degree statutory rape (former RCW 9A.44.070) and first degree rape of a child (RCW 9A.44.073) and found the two statutes not legally comparable for purposes of a guilty plea. We stated in Thompson, “[o]ne of the elements of first degree statutory rape is that the victim be less than 11 years old (former RCW 9A.44.070); for first degree rape of a child the victim must be less than 12 years old. Also, the earlier statute requires the perpetrator to be over 13 years of age, whereas the later statute says instead that the perpetrator must be at least 24 months older than the victim and not married to the victim.” Id. at 722 (emphasis added).
|16 Furthermore, while Division Two of the Court of Appeals held nonmarriage is an implied element of first degree statutory rape, Division One has held it is not. See *401State v. Bailey, 52 Wn. App. 42, 47, 757 P.2d 541 (1988), aff’d, 114 Wn.2d 340, 787 P.2d 1378 (1990); State v. Hodgson, 44 Wn. App. 592, 599-600, 722 P.2d 1336 (1986), aff’d, 108 Wn.2d 662, 740 P.2d 848 (1987). Bailey and Hodgson analyzed whether indecent liberties is a lesser included offense of statutory rape and focused on whether each element of the lesser offense of indecent liberties (containing the element of nonmarriage) is included in the charged offense of statutory rape. In Hodgson, the State, like the majority here, argued that because RCW 26.04.010 renders a marriage between two people under 17 years of age void, “the Legislature omitted the nonmarriage element because it was obvious that a person under 11 years of age could not be legally married.” Hodgson, 44 Wn. App. at 599. The court found this argument unpersuasive, reasoning that because RCW 26.04.010 “allows for marriage under the age of 17 when the age requirement ‘has been waived by a superior court judge ... on a showing of necessity’. . . , nonmarriage is not an element implicit in first degree statutory rape.” Id. (emphasis added) (first alteration in original). The court continued:
Furthermore, the fact that the Legislature requires proof of nonmarriage in second (victim 11 to 13 years old) and third (victim 14 to 15 years old) degree statutory rape indicates a legislative recognition that victims under 17 may be married .... This suggests that the Legislature, as a matter of policy, decided that intercourse with a victim under 11 constitutes statutory rape regardless of whether the perpetrator and the victim are married.
Id. at 599-600.
117 I am not persuaded by the majority’s unsupported assertion that nonmarriage is an implied element of statutory rape and therefore cannot agree statutory rape and rape of a child are comparable crimes.
¶18 I respectfully dissent.