State v. W.R.

• Decision Date: 30 October 2014
• Docket Number: No. 88341–6.,88341–6.
• Citation: 336 P.3d 1134,181 Wash.2d 757
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. W.R., JR., Petitioner.

181 Wash.2d 757

336 P.3d 1134

STATE of Washington, Respondent

v.W.R., JR., Petitioner.

No. 88341–6.

Supreme Court of Washington, En Banc.

Oct. 30, 2014.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner.

Prosecuting Atty King County, Deborah A. Dwyer, King Co Pros/App Unit Supervisor, Seattle, WA, for Respondent.

Travis Stearns, Washington Defender Association, Seattle, WA, Suzanne Lee Elliott, David B. Zuckerman, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Travis Stearns, Washington Defender Association, Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association.

Brian Neal Wasankari, Pierce County Prosecuting Atty, Tacoma, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

Rebecca Jane Roe, Schroeter Goldmark Bender, Emily Cordo, Sexual Violence Legal Services YWCA, Seattle, WA, Amicus Curiae on behalf of Washington COAlition of Sexual Assault Programs, King County Sexual Assault Resource Center and Legal Voice and Sexual Violence Law Center.

Opinion

STEPHENS, J.

¶ 1 This case asks us to reconsider whether it violates due process to assign a defendant the burden of proving consent as a defense to a charge of rape by forcible compulsion. We held in State v. Camara, 113 Wash.2d 631, 639–40, 781 P.2d 483 (1989), and reaffirmed in State v. Gregory, 158 Wash.2d 759, 801–04, 147 P.3d 1201 (2006), that notwithstanding the “conceptual overlap” between consent and forcible compulsion, the defendant may be tasked with proving consent by a preponderance of the evidence. Recently, we were asked to consider this issue a third time but we declined to reach it, instead resolving the case on Sixth Amendment grounds. State v. Lynch, 178 Wash.2d 487, 309 P.3d 482 (2013) ; U.S. Const. amend. VI. Three justices would have reached the issue and overruled Camara and Gregory. Id. at 518, 309 P.3d 482 (Gordon McCloud, J., concurring). Today, we embrace that approach and reject the due process precedent set in Camara and Gregory as both incorrect and harmful. We reverse W.R.'s conviction and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2 Following a bench trial, the juvenile court found W.R. committed rape in the second degree under RCW 9A.44.050(1)(a). The event in question was a sexual encounter between W.R. and J.F. that occurred on January 2, 2011, while J.F. was visiting her aunt, who resided with W.R. and his sister. Both W.R. and J.F. were minors at the time.

¶ 3 Throughout the police investigation, W.R. consistently denied ever having sexual intercourse with J.F. Shortly before trial, he admitted that they had engaged in sexual intercourse on January 2, 2011, but defended it as consensual. Tr. of Adjudicatory Hr'g (TAH) (June 16, 2011) at 155–62. To support his defense, W.R. testified that J.F. had a crush on him and that the two had engaged in sexual intercourse on a prior occasion in July 2010. Id. at 146. J.F. initially denied ever having sex with W.R. before the January incident. TAH (June 15, 2011 Morning Session) at 78–79. At trial, however, she admitted to having sex with W.R. on both occasions but insisted she did not consent to either. Id. at 81–84. Although W.R.'s sister did not witness the alleged rape, she was in the vicinity when it occurred and testified that J.F. had a crush on W.R. TAH (June 16, 2011) at 72, 86–87.

¶ 4 At the close of the bench trial, Judge Gregory P. Canova observed that “the key issue ... is credibility.” TAH (June 21, 2011) at 110. The court did not find W.R.'s and his sister's testimony to be credible, noting W.R.'s evasive responses to questions and inconsistent story, id. at 121–24, and his sister's uncorroborated story and cavalier demeanor at trial, id. at 111–16. The court found J.F.'s testimony to be credible, id. at 116–21, and concluded W.R. committed rape in the second degree by forcible compulsion. The court explained that the State had proved rape in the second degree beyond a reasonable doubt and that W.R. had failed to prove the defense of consent by a preponderance of the evidence. Id. at 124; Clerk's Papers (CP) at 50.

¶ 5 W.R. appealed, arguing the juvenile court erred in allocating to him the burden of proving by a preponderance of the evidence that the act was consensual. W.R. conceded the allocation was consistent with our prior decisions in Camara and Gregory but argued these decisions were based on a flawed reading of United States Supreme Court precedent and violated his due process rights. Division One of the Court of Appeals affirmed in a brief, unpublished per curiam opinion, noting it was bound by our decisions in Camara and Gregory. State v. W.R, noted at 171 Wash.App. 1019, 2012 WL 5306237 (2012). We granted review. State v. W.R., 179 Wash.2d 1001, 315 P.3d 531 (2013).

ISSUE

¶ 6 When the State charges the defendant under a rape statute that includes “forcible compulsion” as a necessary element of the crime, does due process forbid requiring a criminal defendant to prove consent by a preponderance of the evidence?

ANALYSIS

¶ 7 The due process clause of the Fourteenth Amendment guarantees, “No state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.¹ The United States Supreme Court has interpreted this due process guaranty as requiring the State to prove “beyond a reasonable doubt ... every fact necessary to constitute the crime with which [a defendant] is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A corollary rule is that the State cannot require the defendant to disprove any fact that constitutes the crime charged.

¶ 8 Due process does not require the State to disprove every possible fact that would mitigate or excuse the defendant's culpability. Smith v. United States, ––– U.S. ––––, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013) ; Patterson v. New York, 432 U.S. 197, 207, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The legislature does not violate a defendant's due process rights when it allocates to the defendant the burden of proving an affirmative defense when the defense merely “ ‘excuses[s] conduct that would otherwise be punishable.’ ” Smith, 133 S.Ct. at 719 (alteration in original) (quoting Dixon v. United States, 548 U.S. 1, 6, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) ); see also Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). But when a defense necessarily negates an element of an offense, it is not a true affirmative defense, and the legislature may not allocate to the defendant the burden of proving the defense. State v. Fry, 168 Wash.2d 1, 7, 228 P.3d 1 (2010) (explaining that “[a]n affirmative defense admits the defendant committed a criminal act but pleads an excuse for doing so”; it “does not negate any elements of the charged crime”); Mullaney v. Wilbur, 421 U.S. 684, 699, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In such a case, the legislature can only require the defendant to present sufficient evidence to create a reasonable doubt as to his or her guilt. State v. Riker, 123 Wash.2d 351, 367–68, 869 P.2d 43 (1994).

¶ 9 W.R. contends the trial court violated his due process rights when it allocated to him the burden of proving consent, which he maintains negates the element of forcible compulsion. Suppl. Br. of Pet'r at 4. We hold that consent negates the element of forcible compulsion. Therefore, once a defendant asserts a consent defense and provides sufficient evidence to support the defense, the State bears the burden of proving lack of consent as part of its proof of the element of forcible compulsion.

1. Burdening a Defendant with Proving a Defense That Negates an Element of the Crime Charged Violates Due Process

¶ 10 This court in Camara held that in rape prosecutions involving forcible compulsion, the “conceptual overlap” between the defense of consent and the element of forcible compulsion does not forbid imposing on the defendant the burden to prove consent by a preponderance of the evidence. 113 Wash.2d at 638–40, 781 P.2d 483. Unfortunately, we came to this conclusion without applying the “ ‘negates' ” analysis. Id. at 639, 781 P.2d 483. When we decided Camara we were skeptical of the viability of this analysis following the United States Supreme Court's decision in Martin. Id. at 640, 781 P.2d 483. We interpreted Martin to mean that requiring a defendant to prove a defense by a preponderance of the evidence is “not precluded by the fact that the defense ‘negates' an element of a crime.” Id.

¶ 11 This reading of Martin failed to appreciate that the United States Supreme Court's holding in that case was limited. The Court held that due process does not forbid placing the burden of proving self-defense on the defendant charged with the crime of aggravated murder. 480 U.S. at 233, 107 S.Ct. 1098. In so holding, the Court acknowledged that while self-defense “may negate” the mens rea of “purposeful killing by prior calculation and design” in “most encounters,” it does not impermissibly shift the burden of proving a purposeful killing because self-defense merely excuses a killing that would otherwise constitute aggravated murder in Ohio. Id. at 234, 107 S.Ct. 1098 (emphasis added). In other words, the Court found that a purposeful killing could coexist with self-defense, so the presence of self-defense does not necessarily negate a finding of purposeful killing.

¶ 12 Smith subsequently clarified that the prosecution must always bear the burden of disproving a defense that necessarily negates an element of the charged offense. 133 S.Ct. at 719. The Court explained:

The State is foreclosed from shifting the burden of proof to the defendant only “when an affirmative defense does negate an element of the crime.” Where instead it “excuse[s] conduct that would otherwise be punishable,” but “does not controvert any of the elements of the offense itself,” the Government

...