Monday, December 20, 2010

The burden of proving consent under rape law is on the accused in Washington state

We recently started a maelstrom in the men's rights blogosphere by noting that Jessica Valenti advocates shifting the burden of proof to men accused of rape to prove consent. We did a search to find if any states had bought into this loopy concept, the Holy Grail of radical feminism. We learned it is already happening in a state far away that we plan never to visit.  Read how Prof. Richard Klein describes it:

"The Washington State rape statute defining consent as requiring 'actual words or conduct indicating freely given agreement to have sexual intercourse,' was . . . silent as to where the burden lay as to the showing of consent. The defendant in State v. Camara claimed that judge's charge to the jury improperly inferred that the burden was upon him. The Washington Supreme Court determined that there was 'support in the history and purposes of rape law reform' to conclude that the intent of the legislature was to shift the burden of proof to the defense. As a result of the Camara decision, Washington courts typically included the following instruction to juries in rape cases:
"A person is not guilty if the sexual intercourse is consensual. "Consent" means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.
"This instruction was challenged in 2006 in Washington v. Gregory.  The defendant was not claiming that the judge's instruction was wrong as to the current state of the law in Washington; the defendant conceded that the instruction did reflect the court's holding in Camara. Gregory was seeking a reversal of the holding in Camara, but none was forthcoming: 'We decline to overrule Camara, and conclude that the jury instructions here complied with due process.'"

R. Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 Akron L.Rev. 981 (2008).