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 you believe that salesmanship is what changes consensual to nonconsensual I feel sorry for you and any women in your life.

  2. “The assumption should be that someone who claims to have been raped probably has been. I dislike using the term “common sense,” but that’s common sense. ”

    No, that’s guilty until proven innocent. It’s not common sense, it’s mass hysteria wrapped up in an assumption that all men are potential rapists.

    What other criminal statute places the burden on the defendant to prove innocence?

    1. Bailers wrote: “No, that’s guilty until proven innocent. It’s not common sense, it’s mass hysteria wrapped up in an assumption that all men are potential rapists.”

      You’re putting the cart before the horse here. A woman says she’s been raped. Despite Paul’s assurance above, I suspect that most women who claim to have been raped probably have been, for the reasons I stated above. You can argue with that, but assuming you accept it, the question then becomes, who did it? A trial takes place once someone has been charged with that crime, and in the situation we’re discussing, that person has apparently admitted that he had sex with the victim but denies that he forced her, claiming rather that she consented to it. Don’t know how you get from there to “an assumption that all men are potential rapists,” though I will assert that yes, there ARE a lot of potential rapists out there.

      “What other criminal statute places the burden on the defendant to prove innocence?”

      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.

  3. “It sounds to me like a victim has to go back to the days of showing injuries, that she has to fight, even losing her life, to porve it wasn’t consensual.”

    No, it means we go back to the way things have always been. Innocent until proven guilty. And when did a women have to prove “she had to fight back”? 1950?

  4. Markkernes, if the defendant has to prove consent then it is still “he said, she said.” The difference is that making consent an affirmative defense creates a presumption that all sex is rape until the accused participant proves otherwise. Requiring that the prosecution prove compulsion is just requiring the same proof in rape cases that we require in other criminal proceedings.

    1. Richard – is it just me or is getting the other party to record their consent put a damper on the proceeding. 🙂

    2. It seems to me that in any rape case, there are two possibilities: Either an actual rape took place, or two people had sex and one of them claims it wasn’t consensual while the other one claims it was. Bearing in mind the ignominy of bringing a rape charge in the first place, not to mention the shame most women would feel in stating publicly that she had been raped, and considering that virtually no rapes have ever been caught on videotape or cellphone video, the assumption should be that someone who claims to have been raped probably has been. I dislike using the term “common sense,” but that’s common sense. The question then becomes whether the police have apprehended the rapist or someone else, and there likely is evidence that sex took place, so comparing the defendant’s semen or other tangible evidence is something essential to the case. But the idea that a woman would consent to have sex with a man, voiced no objection at any point in the proceedings and THEN claim the consensual sex was rape strains the limits of credibility.

      1. markkernes – the number of faux rape charges is high enough to make anyone wonder if anyone claiming rape is correct. And, fyi, a number of rapes have been filmed, videotaped or captured on cellphones. This is particularly true of gang-rapes.

        1. Paul wrote: “the number of faux rape charges is high enough to make anyone wonder if anyone claiming rape is correct.”

          I’d dearly love to see the statistics on that.

          “And, fyi, a number of rapes have been filmed, videotaped or captured on cellphones. This is particularly true of gang-rapes.”

          Correct me if I’m wrong, but I’m guessing that what filming/videoing of rapes, gang or otherwise, that takes place is done by the perp(s). I suppose the prosecution could obtain them through discovery, but I think you’ve just hit on the perfect defense for the defendant(s) if the movies show the act was consensual.

          1. markkernes – though I will assert that yes, there ARE a lot of potential rapists out there.Speak for yourself.
            When I young there was a saying “The difference between rape and intercourse is salesmanship.”

        2. Paul are you kidding me: the number of faux rape charges is high enough to make anyone wonder if anyone claiming rape is correct.
          So any woman who is raped is lying??? I wonder if you believe there is such a thing as rape or that any man can do whatever he wants with any woman and it is perfectly fine.” Women’s bodies have become part of the terrain of conflict, according to a new report by Amnesty International.
          Rape and sexual abuse are not just a by-product of war but are used as a deliberate military strategy, it says.

          The opportunistic rape and pillage of previous centuries has been replaced in modern conflict by rape used as an orchestrated combat tool.

          And while Amnesty cites ongoing conflicts in Colombia, Iraq, Sudan, Chechnya, Nepal and Afghanistan, the use of rape as a weapon of war goes back much further. ” http://news.bbc.co.uk/2/hi/4078677.stm I guess this is fine with you.
          And where are your stats about false rape allegations. This is just your belief or do you actually have some facts to back it up?

            1. Paul: Thanks for the link, since it shows that in fact “the real answer [is] We don’t know.” The only actual statistics she cites is one study in one midwestern city from 1994—hardly the last word on the subject.

  5. Barkindog: “The burden never shifts. The state has to prove no consent.”

    Seems to me that likely the only way to do that is to videotape (or at least audio-record) every sexual encounter a person has. That’s just stupid. Otherwise, it’s pretty much “he said, she said.” The WA Supreme Court is wrong.

  6. There are lie detectors which can given to the victim while the key questions are asked. Duhhhh. The results are not admissible in court.

    If the prosecution is then convinced that she is telling the truth then keep going. Start interviewing other possible victims of the perp.

    A defendant can go with his attorney to an independent lie detector but he is taking a risk that the results will come out even if the person giving the test says he/she wont tell. He/she might have to tell. But the results are not admissible in court.

    States need to provide more advanced and progressive penalties to a rapist than prison time. Cutting the weeny and the balls off is fair and reasonable. He can squat and pee. The same penalty can be imposed upon the perp by friends, relatives and neighbors of the victim. Knock him out, do the cutting, drop him off at a hospital ER in the dead of night. If he bleeds to death then its their fault. You hang the weenie on the bulletin board at the Optimist Club. No Klan is needed for these activities.

  7. It sounds to me like a victim has to go back to the days of showing injuries, that she has to fight, even losing her life, to porve it wasn’t consensual.

    1. It sounds like the court have to go back to the days where the govt actually had to prove something, before it could be considered to be true.
      Imagine that, what barbarism.

  8. What % of rape allegations are true? What % are false? We, of course, know the answer to neither question. What we do know from past experience is that sometimes the guilty walk and that sometimes the innocent are convicted – and sometimes it does come out right. The answer to who should shoulder the burden of proof both in a constitutional sense and in a moral sense couldn’t be clearer.

  9. i usually agree with darren smith on almost all of his articles. I disagree on this one. The burden should always be on the state.

    “It is better that ten guilty persons escape than that one innocent suffer”- William Blackstone

  10. So, I gather that the author of this decision is critical of legal standards needed to convict a person of the charge.
    It is hornbook law that each element of the charge has to be proven *by the state* beyond a reasonable doubt.
    It not incumbent upon the defendant to prove he didn’t do something. If the state can’t prove it, then the indictment fails.
    Requiring someone to prove affirmative consent is just an artful way of making him prove he didn’t do something. Sometimes that fools (lower IQ’d) judges into accepting the statutory construction, sometimes it fortunately does not.

  11. George, it is not merely a matter of presenting some testimony that there was not consent. Rather, that testimony (combined with other evidence concerning the lack of consent) must be compelling enough to meet the “beyond a reasonable doubt” standard.

    Bill M., any crime is made up of specific elements that constitute the crime. Precedent has established that the constitution requires each element to be proven beyond a reasonable doubt. One of the elements of the crime at issue here is that the defendant accomplish the act by means of forcible compulsion. The court determined that requiring the defendant to prove consent as a defense essentially excused the prosecution from proving forcible compulsion beyond a reasonable doubt, an unconstitutional result.

    In most areas of criminal law, they haven’t tried to shift the burden of proof this way so the decision is unlikely to have must impact outside of sexual assault cases. The complaining witness’ testimony is still enough to prove compulsion, if the jury believes it beyond a reasonable doubt. The jury just can’t find compulsion on the basis that the defendant failed to prove consent.

  12. One of our top universities is in the process of training sexual harassment officers to consider the defendant guilty to begin with. This comes from the Feds.

  13. Will the author of this article kindly state, in direct, plain English, what exactly is the result of this ruling.

    Is he saying that a citizen accused of rape will now have a much better chance of walking since the credibility and dna/other evidence, though admissible, does not satisfy the element of forcible compulsion? Can this logic now be used in other types of criminal cases? Civil actions too?

  14. Q: Did you consent?

    A: No.

    Q: What did you do to demonstrate that nonconsent?

    A: I said, “Stop.”

    Two questions added to the victim’s testimony. Right?

  15. Here is an excerpt from the concurring opinion by Justice Hugo Black in Leary v. U.S.:

    Under our system of separation of powers, Congress is just as incompetent to instruct the judge and jury in an American court what evidence is enough for conviction as the courts are to tell the Congress what policies it must adopt in writing criminal laws. The congressional presumption, therefore, violates the constitutional right of a defendant to be tried by jury in a court set up in accordance with the commands of the Constitution. It clearly deprives a defendant of his right not to be convicted and punished for a crime without*56 due process of law, that is, in a federal case, a trial before an independent judge, after an indictment by grand jury, with representation by counsel, an opportunity to summon witnesses in his behalf, and an opportunity to confront the witnesses against him. This right to a full-fledged trial in a court of law is guaranteed to every defendant by Article III of the Constitution, in the Sixth Amendment, and by the Fifth and Fourteenth Amendments’ promises that no person shall be deprived of his life, liberty, or property without due process of law-that is A trial according to the law of the land, both constitutional and statutory.

  16. Here is the summary of Jackson v. Virginia:

    Jackson v. Virginia, 443 U.S. 307 (1979)
    Jackson v. Virginia
    No. 78-5283
    Argued March 21, 1979
    Decided June 28, 1979
    443 U.S. 307
    Petitioner was convicted of first-degree murder after a bench trial in a Virginia court, and his motion and petition in the state courts to set aside the conviction on the ground that there was insufficient evidence of premeditation, a necessary element of first-degree murder, were denied. He then brought a habeas corpus proceeding in Federal District Court, which, applying the “no evidence” criterion of Thompson v. Louisville, 362 U. S. 199, found the record devoid of evidence of premeditation and granted the writ. Applying the same criterion, the Court of Appeals reversed, holding that there was some evidence that petitioner had intended to kill the victim.
    1. A federal habeas corpus court must consider not whether there was any evidence to support a state court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In re Winship, 397 U. S. 358. Pp. 443 U. S. 313-324.
    (a) In re Winship presupposes, as an essential of the due process guaranteed by the Fourteenth Amendment, that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Pp. 443 U. S. 313-316.
    (b) After In re Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Thompson “no evidence” rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt. Pp. 443 U. S. 316-320.
    (c) In a challenge to a state conviction brought under 28 U.S.C. § 2254, which requires a federal court to entertain a state prisoner’s claim that he is being held in “custody in violation of the Constitution
    Page 443 U. S. 308
    or laws or treaties of the United States,” the applicant is entitled to habeas corpus relief if it is found that, upon the evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Pp. 443 U. S. 320-324.
    2. A review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia Law. Pp. 443 U. S. 324-326.
    580 F.2d 1048, affirmed.
    STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post p 443 U. S. 326. POWELL, J., took no part in the consideration or decision of the case.

  17. A defendant should not have to prove “an affirmative defense” in a criminal prosecution. The burden of proof is upon the state to prove each element of the offense beyond a reasonable doubt. A reviewing court may not rest upon the good judgment of the jury on each element having been proven and must decide for itself if each element was so proven. This is the federal jurisprudence of Jackson v. Virginia which I have yakked about on this blog. Many states wish to employ their own version of due process and ignore the federal Constitution and federal and Supreme Court of the U.S. cases. Those states are Unreconstructed. Missouri is one. Google Jackson v. Virginia and the case will come up. Look at the Timothy Leary case with the concurring opinion of Hugo Black. It is styled United States v. Leary. I will try to post them here in a moment.

    The burden never shifts. The state has to prove no consent.

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