¶1(dissenting)—The question in this case is not
¶2whether C was raped. She was. The question is whether McKnight's conduct makes him guilty of rape in the second degree or of rape in the third degree. The majority's decision obliterates any meaningful distinction between the two degrees of rape and therefore I dissent.
¶3The Legislature has defined rape in the second degree as a class B felony that occurs when a "person engages in sexual intercourse with another person . . . [b]y forcible compulsion . . ." RCW 9A.44.050(l)(a). "Forcible compulsion" is defined as "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped." Former RCW 9A.44.010(5). Rape in the third degree is defined as a class C felony that occurs when sexual intercourse proceeds after the victim's "lack of consent was clearly expressed by the victim's words or conduct", RCW 9A.44.060(l)(a).
¶4Obviously, the principal difference in consequences arising from the crimes is the sanction imposed. Rape in the second degree carries a seriousness level of eight, with a standard range of 21 to 27 months' confinement for an adult defendant with a zero offender score, and 30 to 40 *530weeks for a juvenile, as in this case. Rape in the third degree carries a seriousness level of five, with a standard range of 9 months' to 12 months' confinement for an adult with a zero offender score and 5 to 10 days' for a juvenile. The statutory scheme discriminates between the seriousness of various degrees of rape by attaching differing penalties. The statutes should be interpreted to preserve and effectuate this distinction.
¶5Sexual intercourse is given a broad definition. In RCW 9A.44.010:
(1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
¶6The breadth of this definition makes it particularly important to maintain a clear distinction between the two degrees of rape to avoid elevating relatively minor acts of sexual misconduct to a class B felony.
¶7When applied to the facts of this case, the majority's interpretation removes any meaningful distinction between the two degrees of rape. The only evidence of "resistance" is that C told the defendant to stop kissing her and to stop disrobing her. The only evidence of physical force "which overcomes resistance" is that McKnight slowly pushed C onto the couch and lay on top of her. C's actions met the standard of third degree rape, in that her lack of consent was clearly expressed by her "words or conduct." McKnight's actions appear indistinguishable from the type and amount of physical force necessary to proceed with sexual intercourse in the absence of consent. Indeed, it is hard to think of factual situations which would constitute *531rape in the third degree, but not rape in the second degree, under the majority's interpretation.
¶8To preserve the distinction between the two degrees, there must be something more than words and conduct manifesting lack of consent. Physical resistance is not necessary in all cases to constitute "resistance". "Forcible compulsion" is expressly defined to include "a threat, express or implied, that places a person in fear of death or physical injury to herself ..." If a victim believes that resistance would result in physical injury, physical resistance is not required. However, in this case the trial judge specifically found that "I do not believe that there was a threat express or implied that placed her in fear." C's testimony was that she was never afraid that McKnight was actually going to injure her. He never hit her or threatened to hit her. He never told her not to tell anyone what had happened. She never struggled in the course of the rape.
¶9In light of C's testimony, the majority's emphasis on the fact that she was "physically weak" and "unsophisticated" is unclear. Clearly, the evidence did not demonstrate that she was "physically helpless or mentally incapacitated", which would elevate McKnight's actions to rape in the second degree regardless of force or resistance. RCW 9A.44-.050(l)(b); RCW 9A.44.010(4), (5). Likewise, the evidence that C felt "scared" does not raise the crime from third degree to second degree. C did not elaborate as to what or who she was scared of nor did the State inquire further on this point. Plainly, if the record established that she was "scared" of physical violence, this would sustain rape in the second degree.
¶10In support of its formulation of the resistance requirement, the majority relies extensively on People v. Barnes, 42 Cal. 3d 284, 721 P.2d 110, 228 Cal. Rptr. 228 (1986). This reliance is misplaced. Although I do not quarrel with the California court's discussion of historical attitudes toward rape, the crucial fact is that the California Legislature has eliminated the resistance requirement from the statute and substituted the requirement that the acts be taken against the victim's will. The Washington Legislature *532has not done so; indeed, this is precisely the requirement of rape in the third degree as defined by the Washington Legislature. In the determinate sentencing scheme established by the sentencing reform act, it is particularly important for the court to preserve the distinction between various levels of crimes. This enables the Legislature to properly relate the penalty to the crime through the seriousness level attached thereto.
¶11In finding the victim's acts in this case amount to the statutorily required presence of "resistance", the majority blurs, if not erases, the distinction between the two legislatively defined degrees of the crime. The facts of this case fit naturally into the definition of rape in the third degree. Rape in the third degree was originally assigned a seriousness level of three, but upon further experience and reflection, the Legislature established the current seriousness level of five. If the present penalty for that crime is not sufficiently harsh, it is for the Legislature to adjust the penalty, rather than for this court to expand the scope of rape in the second degree.
¶12I would reverse and remand for sentencing on rape in the third degree.