The Washinton Supreme Court reversed a decades old ruling due to a misapplication of the decision. According to the Seattle Times:
The court had previously ruled that when a defendant claimed the contact was consensual, it was up to the defendant to prove there was consent by a preponderance of the evidence. The rulings essentially made consent an affirmative defense to a rape charge, the way a killer can claim self-defense in a murder case.
But in a 6-3 opinion Thursday, the justices said those decisions wrongly interpreted U.S. Supreme Court precedent. Prosecutors must prove every element of a crime beyond a reasonable doubt, and making a defendant prove that there was consent got that requirement backward, they said.
“Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due-process principles,” Justice Debra Stephens wrote for the majority, saying it raises “a very real possibility of wrongful convictions.”
This is a reasonable position. No one can force a defendant to prove his innocence; the state must prove his guilt beyond a reasonable doubt.
However, as a result in a change in the definition of rape, the burden of proof shifted to the defendant. Justice Susan Owens argued in support of that decision in her dissent. She stated that before 1975, the law defined rape as “committed against the person’s will and without the person’s consent.” In 1975, the legislature changed the law and only required the state to prove “forcible compulsion,” i.e. that the defendant used injury or the threat of injury.
This was done, as Owens explained, to prevent putting the victim’s reputation and actions on trial. However, the new definition required a defendant arguing that the sex was consensual to prove there was consent. As the majority side noted:
It can’t be true that a rape case involved both forcible compulsion and consent. For defendants to prove consent, they are also disproving forcible compulsion — which means the state has been requiring the defendant to prove they didn’t commit the crime, rather than requiring prosecutors to prove the defendant did.
That clearly violates the defendant’s right to the presumption of innocence. This should not create a problem for anyone interested in justice and due process. The point is not to get as many convictions as possible, but to ensure that accused is guilty beyond a reasonable doubt. Yet those more concerned with optics consider the reversed ruling a travesty. Emily Cordo, the former legal director of the Sexual Violence Law Center in Seattle stated:
“You are going to have decisions from jurors based on misperceptions about how victims should behave rather than based on what the defendant did,” she said. “Washington, like every other state, has a real problem getting actual rapists convicted. This makes it that much more difficult.”
That is doubtful. Rape cases are difficult to prove because there is usually no evidence other than the accuser’s testimony. Reversing the burden does not change that, although it does shift the focus. People are more willing to believe the worst about a person rather than the best. If one accuses a person of a crime and requires that person to defend himself, his inability to create a coherent defense will make him look guilty regardless of his actual guilt. That makes convictions much easier to procure, although it does not ensure that they are fair.
The better way is to require the state to prove the crime occurred. Yes, this means the accuser’s credibility will come into question. This means the accuser’s past will become an issue. This means that every interaction the accuser had with the accused will face scrutiny.
That is what should happen.
This does not mean the accuse will find the process easy or pleasant, yet it is what needs to happen if the goal is to determine the truth. None of this will result in accusers faces questions about what they wore. This is simply to make sure that jurors know that the defendant does not have to prove anything.