By David Ward
For years, sexual assault survivors and advocates have worked to change the legal system’s response to sexual violence. We’ve fought to ensure that survivors of sexual assault are able to report crimes without fear that their conduct will become the focus of the case. But a ruling last week by the Washington Supreme Court threatens to move us backward.
In its decision in the case of State v. W.R., the Court reversed 25 years of Washington precedent concerning the burden of proof in rape cases. And the ruling raises serious concerns that it will become even harder to obtain justice for survivors of sexual assault, which is already one of the most underreported and under-prosecuted crimes.
To understand the impact of the ruling, it helps to understand how the law has changed in Washington over the years.
Washington significantly reformed its sexual assault laws in 1975. Before then, rape was defined as sex “committed against the person’s will and without the person’s consent.” As a result, the State had the burden in rape cases of proving that the victim had not consented—a standard that focused on the victim, rather than on the perpetrator.
But in 1975, the Legislature changed the law to remove the victim’s non-consent as an element of the crimes of first or second degree rape. Instead, the Legislature required the State to prove the use of forcible compulsion by the defendant. This change in the law was intended to ensure that the focus in rape cases would be on the defendant’s conduct, rather than on the victim's.
In 1989, the Washington Supreme Court ruled that if a defendant asserted consent as a defense to a charge of rape by forcible compulsion, the defendant had the burden of proving this defense by a preponderance of the evidence. The Court reaffirmed this ruling in another case in 2006.
But by a 6-3 margin last week, the Washington Supreme Court reversed its previous rulings. The Court held that if a defendant is charged with rape by forcible compulsion and asserts that the victim had consented, the State must now bear the burden of disproving the victim’s consent beyond a reasonable doubt. The defendant will no longer have any burden of proving a defense of consent.
Legal Voice joined with our allies at the Washington Coalition of Sexual Assault Programs, the King County Sexual Assault Resource Center, and the Sexual Violence Law Center to submit an amicus brief to the Supreme Court in this case. We argued that requiring the prosecution to disprove that the victim had consented would turn the clock back by shifting the focus of rape cases to the victim's actions, rather than on the defendant's conduct.
Justice Susan Owens agreed with our argument in a powerful dissent, which was joined by Justices Steven González and Charles Johnson. The dissent noted that “placing the burden on the State to disprove consent wrongfully puts the victim’s actions and reputation on trial” and would “invalidate years of work undertaken to properly refocus our rape law.”
The dissent also warned that “if victims believe the trial will focus on their behavior rather than the perpetrator’s actions, they will be less likely to report the rape” and that “if they do report the rape, they may feel that they themselves are on trial when the focus shifts to their actions rather than the crime against them.”
Needless to say, we agree with the dissent and we are disappointed by the Court’s ruling. We cannot go back to the days when rape trials focused on survivor’s conduct rather than on the defendant’s actions. The ruling makes it all the more necessary for us to keep working on all fronts to ensure that the law provides justice for sexual assault survivors and that their voices are heard.
You can help by encouraging friends, family, neighbors, colleagues, and students to sign up to receive our messages and together we can work to change our culture and how survivors of sexual violence are treated.
David Ward is Legal & Legislative Counsel at Legal Voice, where his work focuses on gender violence, family law, and LGBT rights.
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