Washington Rape Defendants Incorrectly Required to Prove Consent Defense

On October 30, 2014, the Washington Supreme Court held that requiring a criminal defendant to prove an alleged rape victim’s consent violates due process.

Before 1975, Washington law defined rape as sex “committed against the person’s will and without the person’s consent,” requiring prosecutors to prove a lack of consent as an element of the crime. This meant rape trials often focused as much on the actions of the alleged victim as on the defendant’s actions, according to dissenting Justice Susan Owens. To avoid such scrutiny, many victims chose not to report rapes, she said.

The Washington Legislature modified the rape definition in 1975, removing the reference to consent and requiring prosecutors to prove “forcible compulsion,” which is defined as force that overcomes resistance, or threats that put a person in fear of death or injury, noted Owens. The amendment was designed to ensure that the actions of defendants, not victims, were at issue, according to Owens.

Following that amendment, the state Supreme Court held that when a defendant charged with forcible rape claimed that a victim consented, the defendant had the burden of proving consent by a preponderance of the evidence. This effectively made consent an affirmative defense, comparable to a claim of self-defense in a murder case.

In the case of a juvenile, identified only as W.R., Jr., who was convicted of second degree rape in King County, Washington, the Court now concludes that its earlier decisions are “incorrect and harmful,” creating “a very real possibility of wrongful convictions.”

The Court held in a 6-3 Majority Opinion, written by Justice Debra Stephens, that its earlier decisions incorrectly interpreted United States Supreme Court precedent, which require prosecutors to prove every element of a crime beyond a reasonable doubt. Requiring defendants to prove consent improperly placed the burden of proof on the defendant, the majority held.

Use of force is an element of forcible rape, the majority noted. Thus forcible compulsion and consent cannot co-exist. Requiring defendants to prove consent necessarily requires them to also disprove forcible compulsion. This requires defendants to prove they did not commit the crime, rather than requiring prosecutors to prove that they did commit the crime, the majority observed.

“Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due process principles,” the Court held. Nevertheless, the dissent fears the decision will undo decades of progress in rape cases.

Victim advocates agree. “You are going to have decisions from jurors based on misperceptions about how victims should behave rather than based on what the defendant did,” warned Emily Cordo, former legal director of the Sexual Violence Law Center, in Seattle, Washington.

W.R., Jr.’s attorney, Gregory Link of the Washington Appellate Project, dismisses the criticism as “fear-mongering.”

“This doesn’t change much. It just clarifies for jurors who has the burden of proof and who doesn’t,” said Link. “I don’t think there’s any concern we’re going back to the dark days of rape prosecutions.”

It is unclear if the decision will have retroactive application for defendants who were convicted under the Court’s now-recognized previously erroneous decisions. See: State v. W.R., 181 Wn.2d 757 (Wash. 2014); 336 P.3d 1134.

Additional Source: Associated Press

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