The Washington State Supreme Court faced up to its own earlier error, holding in State v. W.R. that the burden of proving consent in a juvenile forcible compulsion rape case cannot be shifted to the defendant.

Throughout the police investigation, W.R. consistently denied ever having sexual intercourse with J.P. Shortly before trial, he admitted that they had engaged in sexual intercourse on January 2, 2011, but defended it as consensual. To support his defense, W.R. testified that J.P. had a crush on him and that the two had engaged in sexual intercourse on a prior occasion in July 2010. J.P. initially denied ever having sex with W.R. before the January incident. At trial, however, she admitted to having sex with W.R. on both occasions but insisted she did not consent to either. Although W.R. ‘s sister did not witness the alleged rape, she was in the vicinity when it occurred and testified that J.P. had a crush on W.R.

The trial court found J.P. credible, and W.R. and his sister incredible. The court found that W.R. committed forcible rape, and that the W.R. had failed to prove an affirmative defense of consent by a preponderance of the evidence. The Supreme Court reversed, rejecting its earlier precedent in State v. Camara, 113 Wn.2d 631, 639-40, (1989).

This court in Camara held that in rape prosecutions involving forcible compulsion, the “conceptual overlap” between the defense of consent and the element of forcible compulsion does not forbid imposing on the defendant the burden to prove consent by a preponderance of the evidence. 113 Wn.2d at 638-40. Unfortunately, we came to this conclusion without applying the “‘negates”‘ analysis. !d. at 639. When we decided Camara we were skeptical of the viability of this analysis following the United States Supreme Court’s decision in Martin. !d. at 640. We interpreted Martin to mean that requiring a defendant to prove a defense by a preponderance of the evidence is “not precluded by the fact that the defense ‘negates’ an element of a crime.”

The “negates” analysis held that when a defense “necessarily” negates an element of a crime, then it is not an affirmative defense, but an element of proof of the offense for the prosecution. In the case of rape by forcible compulsion, consent negates the elements of the offense.

The statute defines “forcible compulsion” as “physical force which overcomes resistance, or a threat . . . that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.” As defined, forcible compulsion contemplates force that overcomes actual resistance or threats that place a person in actual fear. There can be no forcible compulsion when the victim consents, as there is no resistance to overcome. Nor is there actual fear of death, physical injury, or kidnapping when the victim consents.

To shift the burden of proving consent to the defense, the court held, violates due process. Rather, the burden of proving lack of consent, where consent is raised as a defense, remains on the prosecution, and must be proven beyond a reasonable doubt.

In light of the national debate surrounding the paradigm shift in how rape and sexual assault are being framed on college campuses, this opinion offers a few critical insights. Initially, it must be noted that this applies for forcible rape, meaning that it does not apply to claims where consent cannot be given (whether as a matter of law or a matter of collegiate fantasy), such as in cases of incapacitation/intoxication.

However, this decision suggests that the affirmative consent trend, Yes Means Yes, which shifts the burden of proving consent to the accused rather than the accuser proving lack of consent, would constitute a violation of due process. For those schools to which constitutional scrutiny applies, this would suggest that procedures requiring burden shifting are unconstitutional.

And even where the school isn’t subject to a constitutional mandate, it suggests it’s just bad policy to address their students’ conduct by applying disciplinary procedures that would be unconstitutional if done elsewhere.

Of course, campus discipline for matters that would constitute crimes anywhere else, and which carry punitive consequences that will follow a young man the rest of his life, rarely comports with much of anything resembling adherence to due process. Lacking notice of allegations, discovery, examination, cross-examination, right to counsel, right to confront witnesses, an impartial factfinder, the very basics that give rise to a belief in the minimum integrity of the proceeding, make such concerns appear fairly tepid. Despite the millions of words murdered to excuse the deprivation of due process, all of which can be sufficiently summed up by, “but the victim’s feelings,” that these proceedings are a constitutional due process fiasco should not be forgotten.

As feminist criminal defense lawyer, Naomi Shatz, wrote at HuffPo:

We as feminists are failing if we make our victories dependent on eschewing the fundamental rights and principles our legal system was founded on — fairness, due process, a presumption of innocence — in order to obtain findings of guilt in sexual assault cases without regard to the facts of individual cases.

If the only way to vindicate the feelings of women is to sacrifice basic principles of due process of men, there are no winners in this battle.

H/T Stephan Illa