Washington Rape Defendants No Longer Required to Prove Consent

State v. W.R., Jr. (2014)

The Washington Supreme Court has held that it violates due process rights to require a defendant to prove consent as a defense to a rape charge. In doing so, the court overruled its earlier decisions on this issue.

In State v. W.R., a King County case, the juvenile was charged with second-degree rape. He admitted he had engaged in sexual intercourse with the accuser but insisted she had consented. To support this contention, he said that the two had engaged in sexual intercourse a few months earlier as well. He said the girl had a crush on him; his sister agreed that the girl did.

The girl admitted she’d had sex with the boy earlier but said she hadn’t consented then either.

The trial judge in Seattle found the credibility of the witnesses to be key. The judge found that the girl, and not the boy or his sister, gave credible testimony. The juvenile was convicted and appealed. He argued that the burden of proof on consent was erroneously put on him and that this error violated his due process rights.

The constitutional right to due process of law requires the State to prove each element of a criminal charge. The law may not require the defendant to disprove any element. The supreme court in the W.R. case observed, “The legislature may not allocate to the defendant the burden of proving [any] defense” that would negate an element of the crime.

The law may, though, require the defendant to prove an “affirmative defense,” that is, a fact that provides an excuse for what otherwise would be a crime.

For example, in a prosecution for sex with an under-aged person—Rape of a Child, as Washington law calls it—it is an affirmative defense that the young person told the defendant she or he was of age and the defendant reasonably believed that. If the defendant fails to prove this on a more-likely-than-not basis, the defense fails. The prosecution is not required to prove beyond a reasonable doubt the absence of the defense; due process doesn’t demand that the prosecution bear that burden.

The question in the W.R. case was whether consent was an affirmative defense to rape. It could be an affirmative defense only if it did not negate an element of rape.

One of the elements of rape under Washington law is “forcible compulsion,” that is, “physical force which overcomes resistance or a threat… that places a person in fear” of death, personal injury, or kidnapping. The supreme court decided that “there can be no forcible compulsion when the victim consents” because there is no resistance to overcome nor any actual fear of death, personal injury, or kidnapping. Since consent negates forcible compulsion, the court ruled that requiring a defendant to prove consent was inconsistent with due process. It ruled that, once a defendant produces evidence that puts consent in issue, the prosecution must prove lack of consent beyond a reasonable doubt.