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

By Darren Smith, Weekend Contributor

The 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

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