Washington Supreme Court Shifts Burden To State In Proving Lack Of Consent Element In Rape Cases

By Darren Smith, Weekend Contributor

scales_of_justiceThe Washington Supreme Court ruled it is a violation of Due Process to require a rape defendant to prove lack of consent in rape trials, shifting the burden to the state. The opinion reverses decades old practices of the courts and by extensions investigators of such crimes to include elements showing lack of consent that were previously assumed based on the statements and evidence of alleged victims.

Following a bench trial a Juvenile court founded defendant W.R. Jr. of having committed Rape in the Second Degree (by forcible compulsion) against a minor identified as J.F. while the former resided at her home with an aunt.

Throughout the police investigation W.R. insisted he did not have sex with J.F. but during trial admitted they engaged in sexual intercourse but defended it as being consensual. The trial court found W.R.’s and a witness’s statements to be inconsistent and not credible. W.R. was convicted of the rape beyond a reasonable doubt and noted that W.R. failed to prove in his defense the sex was consensual.

The issue before the court and within its ruling was “When the State charges the defendant under a rape statute that includes ‘forcible compulsion’ as a necessary element of the crime, does due process forbid requiring a criminal defendant to prove consent by a preponderance of evidence?”

The due process clause of the Fourteenth Amendment guarantees, “No state shall … deprive any person of life, liberty, or property, without due process of law.” The United States Supreme Court has interpreted this guarantee as requiring the State to prove “beyond a reasonable doubt … every fact necessary to constitute the crime with which [a defendant] is charged, pursuant to In re Winship.

To the issue of “Affirmative Defense” the Court found the legislature did not violate assigning proof of an Affirmative Defense to the defendant when the conduct “Excuses conduct that would otherwise be punishable”. But when a defense necessarily negates an element of an offense, it is not true an affirmative defense, and the legislature may not allocate to the defendant the burden of proving the defense: State v. Fry. In Fry an affirmative defense admits the defendant committed a criminal act but pleads an excuse for doing so.

W.R. contends the trial court violated his due process rights when it allocated to him the burden of proving consent, which he maintains negates the element of Forcible Compulsion.

The Court overruled two previous opinions concerning the matter and ruled that the remedy afforded to W.R. was to remand for a new trial.
In the dissent, Justice Owens ruled that the legislature wisely removed the lack of consent element from rape statutes and therefore removing the requirement of the state to prove forcible compulsion on the part of the perpetrator. The majority departed from well-reasoned precedents, retreating to the court’s previous practice of focusing on the victim’s actions instead of the perpetrator. The Court has reversed years of gains in the protection of rape victims which could have serious effects on the underreporting of rapes by victims and the consequences of rape victims who now face having to become the center of attention in trial and investigation which can be of further trauma to the victim. This would further prevent rape victims receiving justice.

Referring to Amicus Curiae by the Washington Coalition of Sexual Assault Programs et al, it would open the door for defendants to emphasize rape myths and “victim blaming.”

The opinion may be read HERE

By Darren Smith

Source: Washington Supreme Court

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

58 thoughts on “Washington Supreme Court Shifts Burden To State In Proving Lack Of Consent Element In Rape Cases”

  1. If rape were considered like other crimes, and the defendant was considered “innocent until proven guilty”, perhaps women would have to change their behavior.
    i.e., Don’t be alone with a man you are not married to.
    Don’t go places alone, in high risk areas (or don’t go at all).
    Maintain good relationships with family and community, to vet men before having a relationship with them.
    Listen to the men in your family and community, when they tell you that men are different from women, have different thoughts and desires, and do not act or react in ways you think are reasonable or make sense to you.
    Listen to wise women in your life, that are willing to tell you how things ARE, not just how they ought to be.
    Yeah, I know, return to the bad old days of the patriarchy. When men protected women from other men, and knew they had a God given calling to do so.
    When women knew that having a man alone in their house implied consent.
    When women knew that going alone to a mans house implied consent. (Or would, to a jury, if she tried to claim rape.)
    If women new that they would have to prove lack of consent, beyond a reasonable doubt, and that they would have to testify in court, and convince a jury to believe them, perhaps they would want to change their behavior.
    Rape is a terrible thing. Being wrongly accused of rape is a terrible thing.
    We should let women know, that if raped, they have a duty to report it and go though the difficult court proceedings, so the guilty will be punished, and others will be protected. Yes, it is harsh, yet so is letting the guilty free to harm others. And yes, the penalty for rape should be harsh, when proven to a jury beyond a reasonable doubt.
    We all have duty to society to do the things that are hard for us, to make the community better.

  2. Well, if WA state prosecuting attorney’s office, if not happy, can appeal the ruling to US supreme court to decide whether “consent” is an element that should be for the defendant to prove or prosecution. With 3 women “liberal” justices and rest of them conservatives, it might become the law of the land thats applicable to the entire nation.

  3. George, even if both sides would present evidence anyway, the jury’s decision may well change depending on who has the burden of proof. Say the complaining witness and the defendant both testify. The complaining witness said she did not consent, and the defendant says she did. If the state has the burden of proof, the jury must find that she is telling the truth beyond a reasonable doubt. If the jury can’t tell who is telling the truth, or determines that the complaining witness is probably telling the truth, then the state has failed to prove its case and the defendant prevails. On the other hand, if the defendant has the burden of proof then if the jury concludes they can’t tell who is telling the truth or that the complaining witness is probably telling the truth, the prosecution prevails. There is a very real, practical difference.

  4. Mark, I get your point. I’m just saying you are wrong. You are saying that the burden of proof should rest with the accused. Who is innocent until proven guilty. Remember that little phrase? You can’t square your position with the basic tenant of our criminal justice system.

    1. Presumably the victim will testify anyway. One thing among everything will be non consent. She (although it is usual when either sex is in play to use the masculine pronoun [males — often young where consent cannot matter], I am using “she” as the more common)– She may be asked how she indicated that non-consent. She will be cross examined. If his defense is “we had consensual sex” it is now up to him to present his affirmative defense. If his defense is something else consent doesn’t matter and she will be attacked on her testimony in that matter. Isn’t that already done?

  5. Markkernes, the complaining witness’ testimony IS evidence. There are a great many crimes where the prosecution rests on the jury believing a single witness to prove a specific element beyond a reasonable doubt. Why should a complaint of rape create a presumption of guilt that is not made in any other type of criminal prosecution. While it is appealing to believe that false complaints are not made, we know that they are. We also know that true complaints of rape are made. Those facts tell us nothing about the credibility of any specific complaint. I see no reason to provide fewer legal protections to someone accused of rape than to someone accused of other kinds of assault.

  6. Bailers:
    Name one other crime???
    It’s not a crime to be a victim, but IMO, the shabby treatment and outright abuse of victims is far worse than the justice so seldom meted out to the more than deserving criminals.

  7. G. Mason…
    Your use of the quote: “It is better that ten guilty persons escape than that one innocent suffer”- William Blackstone….Is the stupidest thing I have seen since that imbicille’s lofty opinion itself.
    Better for whom? Only criminals and their criminal lawyers*!*
    Let 10 mass murdering mad dogs loose = more loot for their Lawyers and mayhem visited on the innocent.
    Put one innocent person in jail and he is safe, fed and will get out. Even on death row it is likely he will die of old age first due to the abject worthlessness of the self-serving do-it-over-and-over without end processes you money-muckers have created for your own benefit.
    Worse then worthless, may only you and your families all suffer the crimes committed by the mad dogs you turn loose on the rest of us.

  8. “What you’ve essentially done is make it almost impossible to convict anyone of rape, since absent some video record or third-party observation, under your scenario, all the defendant has to do is say “She said I could have sex with her” and he’s off the hook. That way lies madness—and lots more rape.”

    No, I’m saying that as with every other crime, you put both stories to a jury and let them decide who’s credible, instead of forcing a defendant to prove their innocence.

    Any sexual crime is now subject to two sentences: how ever many years in jail, and the rest of their life shunned by society after they’re put on the sex offender registry. Again I say – name one other crime where we punish people in a manner more fit for a medieval banana republic than an evolved democracy.

    1. Bailers: “No, I’m saying that as with every other crime, you put both stories to a jury and let them decide who’s credible, instead of forcing a defendant to prove their innocence.”

      You’ve missed the point again. In the overwhelming number of rape cases, there is no direct EVIDENCE of consent or non-consent, though non-consent may be inferred from the condition of the woman’s clothing or person, or the fact that she MADE A COMPLAINT IN THE FIRST PLACE. What the Washington court has done is place an undue burden on the VICTIM to somehow prove the sex was non-consensual when that victim likely has no direct way of doing so.

  9. Paul, I hope that not all men feel they must ‘sell’ sex to a female partner. If the female isn’t giving you signals that she’s attracted to you, then why would you feel the need to push the issue? Let it go and move on to a female that’s receptive.

  10. Really Paul? Oh my what a novel concept! LOL! But dear Paul, when the mutual attraction has reached a certain level (and hopefully the couple is in love), then sex is an inevitability. It happened and it was natural and mutual, get it?

      1. Indeed Paul, it’s a CHOICE that the ‘willing’ make. It’s inevitable that the couple will CHOOSE to engage in sex in a mutual manner. Paul do you need a cookie or something? You seem to be lost tonight or kind of wandering about aimlessly.

        1. Annie – it is inevitable in your world but not everyone’s world. We are from different worlds and different times. I started dating before the pill.

  11. There were those who didn’t consider it rape, Paul. Perhaps they thought it was just good salesmanship.

    1. Annie – It is possible to be attracted to someone and not have sex with them consensual or non-consensual. People can be mutually attracted and not do anything physical.

  12. leejcaroll and Annie – so you two are against consenual sex? According to you, Annie, you have children. I am pretty sure you did not have them by Immaculate Conception.

  13. Many years ago I did jury duty on a rape case. The victim was a parolee living in a halfway house. She had a job as a maid in a local hotel. The hotel manager raped her and told her if she told anyone that he would lie and report that she seduced him. It was against the rules of her parole to engage in sex. He continued to have sex with her by the continuous threat of ‘reporting’ her to the parole officer. She became pregnant and had an abortion, which he refused to pay for or even drive her to the clinic. She took a bus, had the abortion and had complications which she caused her to go to the ER where they reported she had just had an abortion. Well, she was going to be sent back to prison for violating her parole and decided to report the continual coerced sex, or rape. We found the hotel manager guilty of rape after about 12 hours of deliberation. He went to jail.

  14. Annie y oure right I turned it around. Somehow Paul thinks then it is okay. Geesh

  15. Paul the article you cited gave no numbers at all by saying the 2% is wrong and the 44% is wrong.

    Here is some real info: A “misplaced belief” that false accusations of rape or domestic violence are commonplace may be undermining police and prosecutors’ efforts to investigate such crimes, the director of public prosecutions has warned.

    Keir Starmer QC, speaking as he published a study showing there were only a few false allegations during 17 months over 2011 and 2012, said police should not adopt “an over-cautious approach” because “of the understandable concern that some allegations are false”.

    That you think it is okay to try and turn a no into a yes boggles the mind. In your mind if someone says no it is okay to pressure them thru “salesmanship” to let you (a man) do what they want. I know someone who was in that situation. She calls it consensual rape because he so pressured her that she felt she had no choice in the matter.

    1. leejcaroll – two things about the Guardian article. One, it is from the Guardian, which is the HuffPuff of the UK. Two, it takes place in the UK.

  16. Paul, I’m pretty sure that’s what LeeJ meant. She just got it turned around. However I may be wrong. She can speak for herself.

  17. leejcaroll – salesmanship changes nonconsenual to consensual sex not the other way around.

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