Duvall v. Nelson

• Decision Date: 03 January 2017
• Docket Number: No. 73416-4-I
• Citation: Duvall v. Nelson, 387 P.3d 1158, 197 Wash.App. 441 (Wash. App. 2017)
• Court: Washington Court of Appeals
• Parties: James DUVALL, Respondent, v. Rebecca NELSON, Appellant.

197 Wash.App. 441

387 P.3d 1158

James DUVALL, Respondent,

v.Rebecca NELSON, Appellant.

No. 73416-4-I

Court of Appeals of Washington, Division 1.

FILED: January 3, 2017

Evangeline Stratton, Anderson, York & Stratton, PC, 150 Nickerson St., Ste. 311, Seattle, WA, 98109-1634, Alanna Peterson, Pacifica Law Group LLP, 1191 2nd Ave., Ste. 2000, Seattle, WA, 98101-3404, Kevin Blair Hansen, Livengood Alskog, PLLC, P.O. Box 908, 121 Third Ave., Kirkland, WA, 98083-0908, Thomas Harding Wolfendale, Robert Bertelson Mitchell, Jr., K & L Gates LLP, 925 4th Ave., Ste. 2900, Seattle, WA, 98104-1158, for Appellant.

Timothy Scott McGarry, Attorney at Law, 155 108th Ave. N.E., Bellevue, WA, 98004-5928, James Elliot Lobsenz, Carney Badley Spellman, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, for Respondent.

Elizabeth Simson Weinstein, Yarmuth Wilsdon PLLC, 1420 5th Ave., Ste. 1400, Seattle, WA, 98101-3336, Janet S. Chung, Legal Voice, 907 Pine St., Ste. 500, Seattle, WA, 98101-1818, as Amicus Curiae on behalf of Legal Voice.

Leslie J. Savina, Northwest Justice Project, 401 2nd Ave. S., Ste. 407, Seattle, WA, 98104-3811, as Amicus Curiae on behalf of Northwest Justice Project.

Laura Jones, Attorney at Law, P.O. Box 3026, Renton, WA, 98056-5026, as Amicus Curiae on behalf of King County Sexual Assault Resource Center.

Mann, J.¶1 In 2006, the Washington State Legislature created the Sexual Assault Protection Order Act (SAPOA), chapter 7.90 RCW, with the intent of creating civil remedy allowing a victim of sexual assault to obtain a protection order against future interactions with their assailant. In order to obtain a sexual assault protection order, the petitioner must allege, and the court must find, that the sexual conduct or penetration was "nonconsensual"—in other words, that the petitioner did not give consent. "Nonconsensual" is defined by SAPOA to mean "a lack of freely given agreement." RCW 7.90.010(1).

¶2 We are asked in this case to decide, (1) whether the ability to consent necessarily requires the petitioner to have the capacity to consent or freely give agreement, and (2) where there is evidence of excessive alcohol consumption, or other impairment, whether the trial court has an obligation to determine if the petitioner had the capacity to consent. We answer both questions in the affirmative.

¶3 This case concerns two freshmen students at the University of Washington during the evening and early morning hours of January 9 to 10, 2015. Petitioner Rebecca Nelson attended several fraternity parties during the evening where she consumed a significant quantity of alcohol. Nelson did not remember how she got back to her dormitory, but had a vague memory of the respondent James Duvall being in her dormitory room in the early morning hours. The next morning, believing she had been raped by Duvall, Nelson alerted the campus police and ultimately sought a sexual assault protection order.

¶4 During an evidentiary hearing, Nelson testified that she had no memory of the night and did not remember consenting to sex. Duvall agreed that the two had engaged in sexual intercourse, but testified that Nelson had given her verbal agreement. Because Nelson could not remember the specifics of the night, and the only testimony was that of Duvall, the trial court found that there was consent and denied the sexual assault protection order.

¶5 The trial court erred as a matter of law in failing to consider and find, based on the evidence, whether, as a threshold matter, Nelson had the capacity to give consent. We reverse and remand for entry of findings.

FACTS

¶6 Rebecca Nelson and James Duvall entered the University of Washington as freshmen in the fall of 2014. Nelson and Duvall resided in the same dormitory. They were acquainted through a mutual friend, had met previously in social settings, but had never dated or spent time alone.

¶7 On the evening of January 9, 2015, Nelson worked a closing shift at Starbucks then met up with friends to celebrate a friend's birthday and attended a party at a local fraternity. One of Nelson's friends brought a half-liter water bottle filled with vodka. While all of her friends initially drank from the bottle, Nelson ended up holding onto and drinking from it through the night. Once at the fraternity party, Nelson drank three or four shots of alcohol from the bar along with a juice drink she believed contained alcohol. She continued to drink vodka from the water bottle finishing half of the bottle by midnight. After midnight, Nelson moved to another house party where she continued to drink from the water bottle of vodka. Nelson testified that she drank much more than she would typically drink, that she became heavily intoxicated, and began to lose her memory.

¶8 Nelson recalled "Snapchatting" with friends, but didn't remember the contents other than one of her high school friends commenting that she looked drunk.¹ Nelson's testimony was supported by her boyfriend who was not with her that evening. As he described:

The evening of January 9th, I was going through my fraternity's initiation process and was occupied at my chapter house ... until around 4 AM on the 10th.... Upon finishing being initiated I was able to check my phone again and noticed many snap chat messages from Becca. As I went through them almost all of them were incoherent, I could not pick out more than one word per picture. In the background I saw Becca with some of her friends that I recognized and saw what appeared to be two separate dorm rooms throughout the dozen or so snapchats. Her last message was from 2:06 AM.

Having interacted with Becca drunk, I knew that when she had consumed a lot of alcohol her text messages became nearly as unreadable as the snapchats, and because her snapchats were much worse than anything she had sent me before I got worried and called her, as I did not know she was going out that night and I was worried about her. I didn't connect and left her a voicemail, asking if she was ok and just checking in. After that I fell asleep.^[2]

¶9 Nelson vaguely remembered leaving the second party and heading to a third. While she didn't remember how she got there, she remembered ending up at her friend, Shirley Chen's, dormitory room.

¶10 According to Chen, at around 1:00 or 2:00 a.m., Nelson told Chen she was going to walk back to her dormitory room—about 10 or 15 minutes away on the other side of campus. Chen testified that she insisted on walking Nelson back to her dormitory "since [Nelson] had been intoxicated and the conditions outside were not too ideal. It was dark out, a little rainy, and her dorm was located across campus." Chen testified that Nelson said she was fine. Although Chen was reluctant, because she felt Nelson "was not completely sober," Chen decided to let Nelson walk back to her dormitory alone. Chen testified that she had been drinking with Nelson several times before, and found Nelson to be "a very laidback and relaxed person and that seems to carry on into her drunken state so it is a bit difficult to judge how intoxicated she really is." Before she left, Chen told Nelson to text as soon as she got back to her own dormitory. Nelson never sent Chen a text message.

¶11 Nelson did not remember getting back to her dormitory or entering her room. She believes she ran because it was cold and at some point she fell down, ripped her jeans, and bruised her knee. Nelson testified that the only thing she remembered the rest of the night was "feeling pain and then like I think James saying ‘I need to get rid of this condom.’ " She recalled waking up the next morning and feeling pain in her vagina. She noticed her pajama shorts were inside out and that there was blood on the sheets. Later that morning, Nelson told her boyfriend that she thought she had been raped. She then told her parents. With her parents' assistance, she alerted the University of Washington Police who took a statement and collected evidence. She then checked into Harborview Medical Center for a sexual assault exam.

¶12 Duvall testified that he communicated with Nelson throughout the night. Duvall testified that around 1 a.m. he sent Nelson a Snapchat message asking her where she was and Nelson responded that she was with some of her friends. He "asked her when she was coming back" and "if she wanted to hang out" when she got back to the dormitory. Nelson reportedly said yes and that her roommate was not there. Duvall asked her to send him a Snapchat when she got back to the dorm.

¶13 Duvall testified that around 1:30 or 2:00 a.m., Nelson sent him a Snapchat saying she was back in her room. Duvall sent her a message that he would come knock on her door. When he arrived and knocked she said he could come in. When Duvall walked into the room, he hugged Nelson and they started talking while sitting down on the bed. Duvall testified that Nelson seemed drunk, but not incoherent, she was talking normally, was responsive to questions, and was not slurring her words. He testified that when he leaned in to kiss her, she was responsive and kissed him back and when he asked her if she wanted to have sex she said "[y]es." Duvall admitted that he had sexual intercourse with Nelson. After intercourse, Duvall testified that he and Nelson talked for 10 to 15 minutes and that he then turned off her light, gave Nelson her cell phone, and left.

¶14 Nelson testified that after returning to school she was "terrified for the next few days until I heard James had been moved out of Alder and that there was a no contact order in place." She testified becoming extremely paranoid of running into Duvall and was afraid of running into him on campus. After learning that neither the prosecutor nor University of Washington were going to take action against Duvall, on March 18, 2015, Nelson filed a petition for a sexual assault protection order in King County Superior Court. She received a temporary sexual assault protection order and notice of hearing. On March 31, 2015, the parties...