Court Clarifies “Consent” Requirement in Sexual Assault Protection Order Cases Involving Intoxicated Persons

Duvall v. Nelson (2017)

by David S. Marshall

Enacted in 2006, Washington State’s Sexual Assault Protection Order Act gives a civil remedy to individuals complaining of sexual assault by allowing them to obtain a protection order against future contact with their alleged assailants. To obtain such an order (a “SAPO”), the successful petitioner must prove that the sexual conduct or penetration was nonconsensual. “Nonconsensual” is defined by the law to mean “a lack of freely given agreement.” 

A Washington Court of Appeals case has now elaborated on the meaning of “nonconsensual” in instances where the petitioner was intoxicated. In Duvall v. Nelson, a University of Washington student sought a SAPO against a classmate arising from a sexual encounter between the two when both had been drinking. The appellate court found that the ability to freely give consent requires the petitioner have the capacity to consent. The court held that when there is evidence of intoxication, the trial court must determine whether the petitioner was capable of consent.

The events of the case occurred one night on the University of Washington campus in Seattle. Nelson, a freshman, had attended several fraternity parties with her friends over the course of the evening and had drunk a lot of alcohol. As a result, she could not later remember how she had made it back to her dorm room.

At some point after her return, Duvall, her classmate, had sex with her. He testified that he believed she had consented. But when Nelson awoke the next morning, she reported to campus police that she had been raped by him. Nelson later sought a SAPO against Duvall.

During the evidentiary hearing in the SAPO proceeding, Nelson testified that she had no memory of the night and did not remember consenting to sex. Duvall testified that he had received several Snapchat and text messages from her over the course of the evening, and that she had invited him to her room and had given her consent to sex after he arrived. Because Duvall’s testimony was the only evidence of whether consent had been given, the trial court found that there was consent (at least at one point in time) and refused to issue a sexual assault protection order.

The court of appeals found that the trial court had failed to consider whether Nelson had the capacity to give consent. The court of appeals said that the ability to “freely” consent to sexual conduct requires the mental capacity to consent. The dictionary definition of “freely” and the legislative history of the SAPO act indicate that determining capacity to give consent is a necessary threshold inquiry in determining whether consent was freely given by an intoxicated person.

On remand, the trial court must decide whether the woman had the capacity to consent to sex in this particular case. To do so, it must consider factors such as her extreme intoxication, her memory loss, the concern of her friends and boyfriend on the night, her insistence on walking home alone at 2:00 a.m., and the fall she took on her way home. After considering all of this evidence, the trial court must determine whether the woman proved by a preponderance of evidence that she lacked the mental capacity to consent to sex. If the court finds that Nelson failed to prove that she lacked the mental capacity and failed to prove that sexual penetration was nonconsensual, the court should deny the requested order.