¶14 (dissenting) — The majority concludes that the two offenses here, second degree child rape and second degree rape, are not the same for the purposes of double jeopardy. Although the offenses initially appear to be different, those differences are illusory. Each crime simply requires proof of nonconsent because of the victim’s status, which operates to make out a strict liability offense. See State v. Clemens, 78 Wn. App. 458, 467, 898 P.2d 324 (1995); State v. Abbott, 45 Wn. App. 330, 334, 726 P.2d 988 (1986). Therefore, I must respectfully dissent.
Schultheis, A.C.J.¶15 Notably the State could prove second degree rape by showing that the mental incapacity is caused by the victim’s age. RCW 9A.44.010(4) defines “incapacity” as “that *220condition existing at the time of the offense which 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.” Our courts have long held and our legislature has long recognized that persons are disabled by virtue of their minority. E.g., Duffy v. Dep’t of Soc. & Health Servs., 90 Wn.2d 673, 678-79, 585 P.2d 470 (1978). We have also noted that minors lack the legal capacity to consent to sexual relations because they are too immature to rationally or legally consent. Clemens, 78 Wn. App. at 467; Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 68, 124 P.3d 283 (2005).
¶16 Further, the “mental age” of a victim in a mental disability rape case can be used to determine whether the victim is capable of consent. State v. Ortega-Martinez, 124 Wn.2d 702, 714, 881 P.2d 231 (1994). And the condition of the victim in this case could be proved by the victim’s appearance. See State v. Summers, 70 Wn. App. 424, 430-31, 853 P.2d 953 (1993) (finding testimony of second degree rape victim provided sufficient evidence from which a jury could determine mental incapacity and holding that a victim’s mental ability is not always a topic requiring expert testimony); State v. Biggs, 57 Wash. 514, 516, 107 P 374 (1910) (proving statutory rape with circumstantial evidence).
¶17 Moreover, the legislature has historically grouped the disabled and minors together for special treatment. See, e.g., RCW 4.16.190 (providing for the tolling of the statute of limitations for persons under 18 years old or who are “incompetent or disabled”).
¶18 Even if the offenses at issue pass the Blockburger3 test, the statutory language and structure lead to the conclusion that the legislature did not intend multiple punishments here. The Blockburger test is merely a useful canon of statutory construction, and it is only one point of *221the inquiry. State v. Freeman, 153 Wn.2d 765, 776,108 P.3d 753 (2005); Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981). The test is “essentially a factual inquiry as to legislative intent,” not a conclusive presumption of law. Garrett, 471 U.S. at 779. Therefore, “[i]f the facts that must be proved for the two statutes are not the same, the court must then determine if there are other indicia of legislative intent that suggest the legislature did not intend to authorize multiple punishments for the same act.” State v. Jackman, 156 Wn.2d 736, 750, 132 P.3d 136 (2006). This determination can be made with evidence of legislative intent that Blockburgeds same elements test does not take into consideration.
¶19 In the two crimes here, there is no difference in the mens rea or the actus reus to draw a meaningful distinction between these offenses. That was not the case in State v. Calle, 125 Wn.2d 769, 888 P.2d 155 (1995). In Calle, the court noted a distinction in the actus reus—force versus the prohibited relationship. Under the statutory scheme at issue here, the victim can be no more or less vulnerable or exploited by the reason of the strict liability imposed by the inability to consent, either by reason of the victim’s age or condition. There is no more or less violence or force required in the two crimes. There is no more or less damage resulting from the two crimes.
¶20 The purpose of statutory rape statutes is to “protect persons too immature to rationally or legally consent.” Clemens, 78 Wn. App. at 467. Both of the statutes at issue here are clearly meant to protect from sexual intercourse persons who are vulnerable and incapable of legal consent due to either their youth (second degree child rape) or other incapacitating condition (second degree rape). See Christensen, 156 Wn.2d at 68 (noting that child rape statutes in chapter 9A.44 RCW are for the protection of those who cannot rationally or legally consent).
*222¶21 The two crimes also have a defense in common for lack of knowledge. See RCW 9A.44.030(1) (providing a defense if the defendant did not know that the victim was mentally incapacitated); RCW 9A.44.030(2) (providing a defense if at the time of the offense the defendant reasonably believed the alleged victim to be a lawful age).
¶22 In State v. Birgen, 33 Wn. App. 1, 14, 651 P.2d 240 (1982), Division One of this court examined the third degree rape and statutory rape in the third degree statutes. It held that a defendant cannot be convicted of both nonconsensual rape and statutory rape based on age for a single act of intercourse. Then, in Calle, our Supreme Court cited Birgen for what it perceived to be “attempting to reach a double jeopardy analysis despite the concurrent sentence rule” then in effect.4 Calle, 125 Wn.2d at 775. The Supreme Court nonetheless agreed with the ultimate reasoning in Birgen. Id.
¶23 Birgen examined the same statutory scheme and legislative history before the court today. It stated:
In 1975 the rape and carnal knowledge sections of the criminal code were replaced with sections dividing both “rape” and “statutory rape” into three degrees, similar to the present structure. Laws of 1975, 1st Ex. Sess., ch. 14, p. 172. The Legislature removed the requirement that the victim of a “rape” be over the age of 10, and added an offense of nonconsensual intercourse as third degree rape.
Birgen, 33 Wn. App. at 13.
¶24 From this revision, the Birgen court stated:
We find no indication, however, that by these changes the Legislature intended to permit multiple convictions where a *223single act of intercourse violated both the rape and the statutory rape sections. Rather, the legislative changes indicate an intent to further grade sexual offenses by the degree of force used and the age of the victim. The severity of the punishments for the different degrees of both rape and statutory rape indicate that the Legislature took into account the heinous nature of the crimes when defining them as it did.
Id. at 13-14.
¶25 In 1988 the legislature again revised the statutes. In this revision, the “statutory rape” crimes that described unlawful sexual intercourse were referred to as “child rape.” Former RCW 9A.44.090 (1979), repealed by Laws of 1988, ch. 145, §§ 12, 24. The new child rape statutes took into consideration the age differential between victim and perpetrator.
¶26 Significantly, the legislature also revised the indecent liberties statute at that time, which proscribed certain sexual contact. It denoted a new crime, child molestation, which it broke down into three degrees, depending on the age differential between perpetrator and victim, former RCW 9A.44.083, .086, .089 (Laws of 1988, ch. 145, §§ 5-7), although the crime of indecent liberties remained to proscribe sexual contact by forcible compulsion or when the victim is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless. Former RCW 9A.44.100 (Laws of 1988, ch. 145, § 10).
¶27 The legislature, also in 1988, added two degrees of a crime that it denoted as sexual misconduct with a minor, which made unlawful sexual intercourse (first degree) or sexual contact (second degree) with a victim between 16 and 18 years old, when the perpetrator is at least 60 months older than the victim, is in a significant relationship to the victim, and abuses a supervisory position within that relationship in order to engage in sexual intercourse or contact. Former RCW 9A.44.093, .096 (Laws of 1988, ch. 145, §§ 8, 9).
*224¶28 As noted in Birgen, this shows a legislative intent to sort offenses by the degree of force and the age of the victim as well as the abuse of trust inherent to crimes based on the relationship between the perpetrator and victim. 33 Wn. App. at 14. This trend has continued. See RCW 9A.44.100.5
¶29 The Birgen court properly concluded
that the Legislature has not authorized multiple rape convictions arising out of a single act of sexual intercourse violating more than one of the statutory sections defining rape and statutory [or child] rape. The history of the rape statutes shows legislative intent and judicial recognition that both the rape and the statutory [or child] rape statutes define a single crime of rape with the degree of punishment dependent on the underlying circumstances. The rape statutes continued to describe a single crime even after they were broken into separate statutory sections.
33 Wn. App. at 14.
¶30 Calle does not require a different result here. In Calle, our Supreme Court held that a single act of intercourse could support convictions for both incest and second degree rape. Again, although the court held that “the result *225in Birgen is sustainable” on double jeopardy grounds, the court distinguished the statutes involved in Birgen. Calle, 125 Wn.2d at 775, 781. The Calle court noted that the purpose of the rape statutes in chapter 9A.44 RCW—which includes the nonconsensual rape and statutory (or child rape) statutes—is to prohibit unlawful sexual conduct based on aggression, power, and violence. Id. at 781. And, as previously observed, I would conclude that the purpose further encompasses the abuse of power and trust inherent to the age differential and relationship between the victim and the perpetrator.
¶31 The Calle court differentiated that purpose of the rape statutes from that of the incest statute, which is “to prevent mutated birth but also to promote and protect family harmony, to protect children from the abuse of parental authority, and “because society cannot function in an orderly manner when age distinctions, generations, sentiments and roles in families are in conflict’.” Id. (quoting State v. Kaiser, 34 Wn. App. 559, 566, 663 P.2d 839 (1983)). There is no such distinction here.
¶32 The court also noted that the second degree rape offense and the incest offense are defined in two separate sections of the criminal code. Calle, 125 Wn.2d at 780. “Incest and bigamy now constitute RCW 9A.64, Family Offenses, while second degree rape is defined in RCW 9A.44, Sex Offenses.” Id. Thus, the court concluded that the “differing purposes served by the incest and rape statutes, as well as their location in different chapters of the criminal code, are evidence of the Legislature’s intent to punish them as separate offenses.” Id. The same is not true here. The statutes here are both in chapter 9A.44 RCW and they serve a similar purpose.
¶33 The two statutes at issue here—second degree rape of a child and second degree rape—are more aptly described by Birgen than by Calle.
¶34 Since legislatures often produce little evidence of their intent regarding multiple punishment, the rule of lenity is often an appropriate tool of statutory construction *226in such contexts. See Busic v. United States, 446 U.S. 398, 406, 100 S. Ct. 1747, 64 L. Ed. 2d 381 (1980). The rule “merely means that if [the legislature] does not fix the punishment for a [state] offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.” Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955). Washington courts have adopted these principles and recognized that in the absence of a clear indication that the legislature intended multiple punishment for the unitary conduct, the court should apply the rule of lenity to presume that the legislature did not intend multiple punishment. Jackman, 156 Wn.2d at 751. The rule applies here.
¶35 Because this court may not vary the statutory scheme from that enacted by the legislature, Birgen, 33 Wn. App. at 14, there is no clear indication of legislative intent to impose multiple punishment, and in light of the clear precedent set forth in Calle and Birgen, I would reverse.
Reconsideration denied January 24, 2008.
Review granted at 164 Wn.2d 1008 (2008).
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
As aptly explained in State v. Eaton, 82 Wn. App. 723, 728, 919 P.2d 116 (1996):
When Birgen was decided, Washington followed the concurrent sentence rule. Under that rule, when the State brings several charges against a defendant for the same act or transaction and obtains convictions on all counts, no double jeopardy issue arises if the defendant receives concurrent sentences that do not exceed the penalty for any of the offenses because he is being punished but once for his unlawful act. Calle, 125 Wn.2d at 772. Because the defendant in Birgen received concurrent sentences for his multiple convictions, the concurrent sentence rule required the court to reject his double jeopardy claim. It nonetheless reversed, concluding that concurrent sentences could be reviewed ‘Tor non-double jeopardy reasons.” 33 Wn. App. at 5.
Later, the legislature expanded the definition of the crime to include:
(c) When the victim is a person with a developmental disability and the perpetrator is a person who is not married to the victim and who:
(i) Has supervisory authority over the victim; or
(ii) Was providing transportation, within the course of his or her employment, to the victim at the time of the offense;
(d) When the perpetrator is a health care provider, the victim is a client or patient, and the sexual contact occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual contact with the knowledge that the sexual contact was not for the purpose of treatment;
(e) When the victim is a resident of a facility for persons with a mental disorder or chemical dependency and the perpetrator is a person who is not married to the victim and has supervisory authority over the victim; or
(f) When the victim is a frail elder or vulnerable adult and the perpetrator is a person who is not married to the victim and who:
(i) Has a significant relationship with the victim; or
(ii) Was providing transportation, within the course of his or her employment, to the victim at the time of the offense.
RCW 9A.44.100G)