(dissenting) — Although I am sympathetic to the majority’s concern for sentencing court discretion, I believe that a child’s so-called "willing participation” in an act of sexual intercourse should not, as a matter of law, be used to justify a sentence below the standard range. The use of this factor is inconsistent with legislative intent. Further, our approval of this factor may lead to serious mischief; convicted offenders may now place their child victim on trial in an effort to prove facts that might justify an exceptional sentence downward.
The rationale supporting the criminalization of sexual intercourse with a child is that the child is too immature to rationally and legally consent to the act. See State v. Abbott, 45 Wn. App. 330, 332-34, 726 P.2d 988 (1986), review denied, 107 Wn.2d 1027 (1987). Thus, the consent of the victim, as the majority acknowledges, is not a defense. See RCW 9A.44.079; State v. Knutson, 121 Wn.2d at 775, 854 P.2d 617 (1993). Nonetheless, the majority, relying heavily on RCW 9.94A.390, concludes that the victim’s willing participation is an appropriate sentencing factor.
The majority’s holding requires an assumption that a child victim, although legally incapable of agreeing to participate, is nonetheless capable of being a willing participant. I believe this assumption is flawed. A person who cannot consent cannot act willingly. Random House Dictionary of the English Language 2175 (2d ed. 1987). Thus, when the legislature used the term "willing participant” in RCW 9.94A.390, it did not intend to include victims incapable of legal consent.
A view of the total scheme of the child rape statute at *470hand, RCW 9A.44.079, further supports this conclusion that a child cannot be a willing participant. The statute, in addition to focusing on the immaturity of the child, also looks at the age of the perpetrator. He or she must be at least 4 years older than the victim, who in the case of rape in the third degree, must be at least 14 years old. Thus, the defendant must be an adult. The statute contemplates a substantial disparity between the age and maturity of the victim and of the perpetrator, and in light of this disparity, requires the adult to exercise restraint and not take advantage of a child, even one who appears to be a willing participant. The crime is failing to exercise this restraint.
The majority acknowledges that in some cases the perpetrator has groomed the victim. The courts also see many other cases where the victim is particularly precocious because of past sexual abuse. The majority ruling suggests that when a defendant claims that he is less culpable because of the victim’s willing participation, the State or the victim bear the burden of showing that such is not the case. The practical consequences of requiring such a showing include further invasions of the privacy of those victims most in need of the law’s protection.
Finally, I am concerned about the majority’s description of the facts of this case. Clemens’ conviction arose from a Newton/Alford guilty plea.9 Thus, the sentencing court did not hear evidence at trial or even have a defendant’s description of the act as part of his guilty plea. It had only the presentence investigation report and the psycho-sexual evaluation. From this limited record, the majority states that there is no evidence suggesting that Clemens manipulated the victim.
But the record does contain claims, admittedly unsubstantiated, that Clemens may have been involved in other incidents with other victims and in an earlier incident with this victim. The author of the presentence report *471expressed his belief that this matter "was not just an isolated/spontaneous incident”. Although we must view these reports cautiously, they do contrast with the majority’s characterization of the record. They show the meager and contradictory support for the sentencing court’s conclusion that Clemens is less culpable than other offenders because TH was a "willing participant”.
The above discussion does not preclude reliance on factors that look to the defendant’s culpability rather than the victim’s behavior. Evidence of the lack of a predisposition to commit the crime or that the crime was committed under threat, coercion, duress, or compulsion might provide substantial and compelling reasons to support a downward departure. RCW 9.94A.390(l)(c) and (l)(d). However, the trial court made no findings or conclusions to this effect. Instead, it focused totally on the victim. Thus, I would reverse.
North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970); State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).