In Washington State, the burden of proof of consent in a sexual assault case has traditionally fallen not on the alleged rape victim, but on the accused. A recent decision by the Washington Supreme Court, however, has changed the standard, and given hope to due process advocates:
The court in its 6-3 ruling reversed earlier decisions that forced an alleged rapist to establish a preponderance of evidence that a victim consented to sex. The court said such a burden violated constitutionally protected rights and also wrongly interpreted precedent set by the U.S. Supreme Court.”When a defense necessarily negates an element of the crime charged, the State may not shift the burden of proving that defense onto the defendant,” the ruling said.”Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due process principles,” Justice Debra Stephens wrote, adding that doing so raises “a very real possibility of wrongful convictions.”
The media has predictably framed this ruling as one that “could make it more difficult for rape victims to get justice”:
“There’s another person whose rights need to be taken into consideration, and that’s the victim.”Six of the nine justices agreed to reduce the rape defendant’s burden, saying that 25 years of earlier rulings were incorrect and harmful to the constitutional presumption of innocence. “The prosecutors are going to have to spend much more time describing to the jury and presenting evidence to the jury regarding how the victim responded to those threats, what their body language is, what kind of noises they made, how quickly did they capitulate to the demand that they say that they wanted it.” When we talked with YWCA sex assault victim advocate Emily Cordo, she was fearful of the ruling’s impact, because now prosecutors will have to prove forcible rape victims did not consent. “Victims have to worry about whether they’re going to be treated with respect, and whether they’re going to be believed.”The three justices in the minority agreed, writing that the majority ruling retreats “to the archaic focus on a rape victim’s actions.”
We’ve done some pretty extensive coverage on on the increasingly-popular “rape culture” narrative, and how that narrative affects (read: destroys) the due process rights of those accused of sexual assault. Washington state changed its laws in 1975 with the goal of making it easier for alleged rape victims to report assaults, but the recent Supreme Court’s decision highlights just how dangerous this change was on a constitutional level.
Most law schools include criminal law in their first semester curriculum, and most law professors I know dread teaching through the rape section of the casebook, specifically because of scandals like the one currently being manufactured in Washington. There’s something about sexual assault that (rightfully) turns the stomachs of most young lawyers and advocates and (not so rightfully) compels people to want to change the rules. Murder and theft are comparatively easy; rape is emotionally difficult to deal with even for those who have never been touched without their consent.
That doesn’t make the Constitution go away.
This desire to do away with due process as a way to make rape prosecutions easier on the alleged victims is one of the most dangerous pseudo-legal trends in America, and the Washington Supreme Court should be applauded for its decision. The idea that those accused of sexual assault are somehow less entitled to a fair trial than those accused of murder or white collar crime is the very opposite of how the law demands these cases be handled, no matter how exponentially more difficult that may make the jobs of prosecutors and victims’ advocates.
Justice is a two way street. Advocates who would throw away this concept do a great disservice to their clients, and create victims of the judicial system in the process.
No one who recognizes and respects the power and duty of the American legal tradition would accept such a thing.
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