Washington’s Supreme Court Makes Rape Harder To Prosecute

Washington’s Supreme Court, in a 6-3 decision, ruled today that defendants accused rape can’t be required to prove the victim consented to sex; rather, prosecutors must prove beyond a reasonable doubt that the alleged victim didn’t consent to sex.

The decision overturns a 1975 legislative reform designed to encourage rape victims to come forward. Under the previous law, defense attorneys often put victims on trial, discouraging rape victims from going to the police or cooperating with prosecutors. The dissenting justices and victim advocates contend today’s ruling will make it harder to prosecute rapists and allow more dangerous sex offenders to go free. That’s probably true.

But the U.S. and Washington Constitutions require the state to prove guilt. The state can’t require defendants to prove their innocence. Today’s majority said that’s what prior interpretations of the 1975 law required them to do.

This is so depends on whether consent/lack of consent is an element of the crime or an affirmative defense. In criminal law, an “element” is a component of the crime, without which no crime occurred. For example, death is an element of the crime of murder, so if the victim is alive, there can’t be a murder. An affirmative defense, on the other hand, excuses a crime. For example, self-defense is a legal excuse for committing a homicide.

The majority seems to be right. Consensual sex, by statutory definition, is not rape. There can be no rape where both parties consent to sex. Lack of consent is an element of rape, which means the burden of proof with respect to consent/lack of consent is on the state, not the defendant. The court had no choice, despite the consequences of making it harder to convict rapists, and making rape trials harder on victimsRoger Rabbit icon.

I suspect this decision may prompt calls for legislative action, but I’m not sure what the Legislature could do about this. The principles involved here are basic, and you can’t legislate away constitutional rights. While sexual acts can be proved with medical evidence, proving lack of consent requires a witness willing to endure cross-examination. For some rape victims, that’s asking for too much.

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