Washington Court Reverses Rape Conviction Due to Faulty Jury Instruction on Consent

State of Washington v. Ortiz-Triana (2016)

by David S. Marshall

The Washington State Court of Appeals has reversed a conviction for Rape in the Second Degree. The trial court’s refusal to use defendant Ortiz-Triana’s proposed jury instruction on consent violated his constitutional right to due process of law.

The case turns on the distinction between elements of a crime and affirmative defenses to a crime.

The elements of a crime are its ingredients. All the elements together define the crime. For a defendant to be found guilty of a crime, the prosecution must prove each element of the crime beyond a reasonable doubt.

An affirmative defense is something the defendant can prove to excuse his behavior, even if the prosecution has proven all the elements.

Here’s an example of the difference between elements of a crime and an affirmative defense to the crime:

In Washington State, the elements of Rape of a Child in the Third Degree are

  1. having sexual intercourse
  2. with a person younger who is younger than 16, and
  3. who is also at least 48 months younger than the defendant

It is an affirmative defense to Rape of a Child in the Third Degree, though, that the defendant reasonably believed the young person was older than 16, or within 48 months of the defendant’s age, if that belief was based on declarations by the young person.

The distinction between elements and affirmative defense is important because it determines the burden of proof. The prosecution has the burden of proving all the elements—a defendant has no burden to prove the absence of an element—and the prosecution must prove them beyond a reasonable doubt. It is the defendant, though, who must prove an affirmative defense, but he only need prove it by the lower standard of a preponderance of the evidence, that is, more likely than not.

Here, Ortiz-Triana was charged in King County Superior Court with raping M.P. at her home in Auburn, Washington.

In Washington, one of the elements of Rape in the Second Degree is the use of “forcible compulsion.” Forcible compulsion generally means that the accused used physical force that overcame resistance and placed the complainant in fear of death or injury.

Ortiz-Triana admitted having sexual intercourse with M.P. but claimed that she had consented. In Washington, consent is an affirmative defense to rape.

But the difference between the element of “forcible compulsion” and consent as an affirmative defense can be confusing. This is because the prosecution often argues that the element of forcible compulsion is proven because the complainant did not consent to sex.

And the opposite is true as a matter of Washington law. That is, Washington law says that forcible compulsion cannot exist when the complainant has consented.

Ortiz-Triana’s trial attorney proposed a jury instruction that would have explained the difference between consent as an affirmative defense and the jury’s consideration of consent as evidence of forcible compulsion.

The trial court rejected the defense’s proposed instruction. Instead, the court used the prosecution’s proposed instruction, which merely portrayed consent as an affirmative defense: it stated that if the defendant proved consent by a preponderance of the evidence, it would be the jury’s duty to return a verdict of not guilty.

The Due Process Clause of the constitution prohibits the State from shifting to a defendant the burden of proving an element of a crime beyond a reasonable doubt. The State’s instruction violated due process because it placed on Ortiz-Triana the burden to disprove forcible compulsion with evidence of consent. Defense counsel’s proposed instruction would have instead allowed the jury to decide whether the evidence of consent left a reasonable doubt of forcible compulsion.

The court reversed the conviction and remanded the case for a new trial.