State v. W.R., No. 88341-6 (Wash. Oct. 30, 2014).
Yesterday the Washington Supreme Court issued an important—and in my view, correct—decision on Washington rape law.
When the government charges you with a crime, due process requires the government to prove every element of that crime beyond a reasonable doubt. So, for example, it’s a crime in Washington to (1) possess (2) more than one ounce of (3) marijuana. Due process requires the government to prove each of those three elements beyond a reasonable doubt before you can be convicted.
If, by contrast, you’re asserting an affirmative defense to a crime, the burden’s on you to prove that defense. Take the example of marijuana again. It’s not a crime in Washington to possess more than an ounce of marijuana so long as you have a prescription for it. But if you’re charged with possession of more than one ounce of marijuana, the burden’s on you to prove that you’ve got a prescription. That’s because an affirmative defense admits that the government can prove the elements of the crime of possession, but asserts a legal excuse for an otherwise criminal act.
This also helps us see what an affirmative defense isn’t. Suppose you’re charged with possession of more than one ounce of marijuana, and in response you argue that you possessed less than an ounce of marijuana. Well, that’s not an affirmative defense, because it negates one of the elements of the crime: possession of more than an ounce. And remember, the burden’s on the government to prove the elements of the crime. So the burden’s on the government, not on you, to prove that you possessed more than an ounce.
Now, in this case, the Washington Supreme Court was interpreting a criminal law that outlaws rape “by forcible compulsion.” The question facing the court is whether it violates due process to put the burden of proving consent on a defendant charged by rape by forcible compulsion. The Supreme Court decided that it does. That’s because, if a defendant has proved consent, he has necessarily proved lack of forcible compulsion, and therefore lack of one of the elements of the crime. If a person freely consents—without duress or threat—to sexual intercourse, that person can’t simultaneously be compelled by force or the threat of force. So, proving consent negates the element of forcible compulsion. Which means that if the burden of proving consent is on the defendant, then the defendant effectively bears the burden of proving that one of the elements of the crime is absent. That, however, would be unconstitutional, since under the Constitution the government has the burden of proving that all elements of a crime are present. Hence, it would violate the Constitution to put the burden of proving consent on the defendant. That, in essence, is what the Supreme Court ruled yesterday.