"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).
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30 comments:
Double ugh! I feel like I've been kicked in the balls.
Sadly,
I grew up in Washington State (Spokane), and still have many relatives there. And I do visit them on occasion. I have to remember to have my wife with me anywhere we go there, so I DO have a defense.
"The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual."
How does he do that?
http://www.dailymail.co.uk/news/article-1340177/Mother-25-cheated-partner-boy-14-jailed-years.html
What would be fair for both parties in WA state?
AFOR i have made a few comments on that daily mail thread but gave up in disgust and the fact so many felt a woman raping an underage male was acceptable.
This is, even by face value only, the most ridiculous thing I have ever heard of in my entire life. The only way a man in Washington St. can cover himself from a false claim of rape either has to require that the women he has sex with either sign a document of consent or submit themselves to being videotaped or both. What woman who cares about her modesty to any degree at all would do such a thing? What woman who wants to be discrete would ever do such a thing?
Those who propose the reversal of innocent until proven guilty are well aware of this and know that now, in the state of Washington, any woman can accuse any man of rape and have him sent to jail even if she knows he is completely innocent.
Absurd!
Anon at 2:06: the question isn't what would be fair for both parties. The question is, why are we willing to presume a man is a criminal when he does an act that has been performed countless times every minute of every day since the world began? If the jury doesn't know who to believe, as if common, he goes to prison. If that were your brother, or father, or son, would you like that?
Duncan: the two main issues are, what effect does such a relationship have on a boy (and I've seen studies that show the effect is significant and deleterious), and why do we allow a double standard when the genders are reversed -- because we all know how older male/teen girl relationship is viewed.
Robert: I agree with you.
The Washington law is a travesty and a perversion of justice if it operates as described. It may very well result in additional men being put through the expense and obloquy of a rape trial. But as long as men can serve on rape juries and know to keep their mouths shut, they can always vote not-guilty and aver that in judging the facts, they ("always" -unspoken) find the defendant (not man, of course) more credible than the alleged victim of the alleged crime. If this occurred in 100% of non-injury rapes, this foolish law would be short-lived.
Is this one of those cases where the prosecution proved "forcible compulsion" and then put the burden of proof of consent on the defendant?
Because while that makes absolutely 0 sense since "forcible compulsion" by definition makes consent irrelevant (meaning, you consented because someone pointed a gun at you); if the prosecution can prove "forcible compulsion", then I don't see any problem with the results of the case.
I think it has more to do with distinguishing between 1st, 2nd, and 3rd - degree rape for sentencing, and not so much actual guilt.
What I want to know is, what 'group' is behind this law? Who or what influenced it? How did it come into being?
Why is WA state the only state in the union with this law?
Is this an issue that should be taken up by the supreme court? The ACLU?
Anyone remember the Chappelle show skit about love contracts? How much longer until this becomes reality??
http://www.comedycentral.com/videos/index.jhtml?title=love-contract&videoId=219422
The "Love Contract" will never work. Even if you had a woman sign one, she could claim she changed her mind halfway through and anything after that was rape.
See: Marriage
"The question is, why are we willing to presume a man is a criminal when he does an act that has been performed countless times every minute of every day since the world began?"
OMG, you are actually condoing RAPE!?!
To Anon @ 7:12pm:
"The question is, why are we willing to presume a man is a criminal when he does an act that has been performed countless times every minute of every day since the world began?"
OMG, you are actually condoing RAPE!?!
I'm thinking this is a joke. Just in case, though...Nooooo, he's condoning SEX.
It's sort of a different thing.
ergh
This WA situation bothers me on several levels. The primary being that it upends the entire concept that our justice system is based on. It opens the door for burden of proof to be shifted to the defendant for ANY type of case.
And, of course, it offends me that it's being used specifically here.
Why is THIS particular crime the one they decided to try this out on?
As Anon at 4:37p wrote, who backed this?
Uno Hu, you're "solution" is at best a workaround and assumes that men will go in knowing the politics behind this. I am not comfortable relying on that. I'm also not comfortable with men being in a position to potentially violate court rules by ignoring judge's orders. I don't know how that can be proved, but it's wrong to even try to set it up that way.
It puts the men at MORE risk to try and circumvent the law.
The law needs to be changed back to match the way the legal system works throughout the country and for its entire history.
Again...ergh.
And I'm adding right-thinking women into my last comment regarding knowingly voting not guilty in these cases. Uno's plan puts jurors at possible risk.
Actually, Uno and Social Worker, if more people would pull their heads out of their butts, and understand what jury nullification is about, this would be a great law to use it on.
For more information see:
http://fija.org/
So based on that, Uno isn't too far off the mark. But voting not guilty, just to vote not guilty, isn't the way to do it.
Hey, that's why I'm a Social Worker and not a lawyer.
Can you give us the gist?
This pretty much says it all:
A Jury's Rights, Powers, and Duties:
But does the jury's power to veto bad laws exist under
our Constitution?
It certainly does! At the time the Constitution was
written, the definition of the term "jury" referred to a
group of citizens empowered to judge both the law and
the evidence in the case before it. Then, in the February
term of 1794, the Supreme Court conducted a jury trial
in the case of the State of Georgia vs. Brailsford1. The
instructions to the jury in the first jury trial before the
Supreme Court of the United States illustrate the true
power of the jury. Chief Justice John Jay said: "It is
presumed, that juries are the best judges of facts; it is,
on the other hand, presumed that courts are the best
judges of law. But still both objects are within your
power of decision." (emphasis added) "...you have a
right to take it upon yourselves to judge of both,
and to determine the law as well as the fact in
controversy".
Who gains cultural, social, and legal, "Empowerment" from attacking heterosexual males?
SocialWorker,
http://billingsgazette.com/news/state-and-regional/montana/article_d6b1aaca-edfc-527f-ad11-f1691fdc6e3b.html
This, while not actual nullification, is exactly what I mean. The fact that the judge and the prosecutor were so shocked, is astounding to me. The judge is able to instruct on jury nullification. Most just don't, so they can legislate from the bench. Sad, really.
I was accused in WA state, and have been soundly criticized for accepting a plea for something I did not do.
I believe I would be in prison to this day had I not accepted the plea.
Not only was all evidence of my innocence inadmissible, she was protected by rape shield laws for her prior accusations against others.
WA state ADVERTISES for women to come forward with rape claims, promotes rapes claims, and encourages rape claims.
There are feminist groups who attend trials and hearings to assure the Judge rules in favor of the "victim" - and vote for Judges accordingly.
While resisting my attorney's urging to accept a plea offer, I was told "There are powerful women's groups who will see you never get an aquittal in Seattle".
I've been scorned and accused of lying about this for years. I'm glad to see this is finally coming out about WA state.
The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.
Has this not been challenged in the US Supreme Court yet? Doesn't Griffin v. California take precedence here?
Bro, I'm sorry to hear you took a plea deal for something you did not do, But the American Gender / raunch community is now so powerful that i can understand yer giving up yer innocence to feed the perverts.
My false rape accuser was a serial false rape accuser, as i was the second guy she falselly accused of ???raping her?? that year. I specifically requested that law enforcement charge her, but they "redefined what the meaning of is, is", in order to be able to conclude that "we don't know she was lying", when in fact she was lying.
What happens top a society that super "Empowers" perverts, by letting them pervert our law enforcement??
J. Bowen,
you would like to think so, wouldn't you? Pierce may be able to better answer that one.
It isn't enough that our system ALREADY PRESUMES GUILT IN RAPE CASES -- now it has to enshrine the preumption of guilt INTO LAW.
Sickening. As if false rape accusers didn't have it easy enough!
Guilt is presumed, and innocence must be proven - yet the accused is STILL up against rape shield laws, medical confidentiality laws and feminist installed judges.
And you want to criticize those who accept pleas when faced with such insurmountable odds.
Good luck when your time comes.
The American Gender / raunch communities main tool for "Empowerment", is to continue fostering a missinformation And manufactured statistics Alliance with American law enforcement.
If American law enforcement were told that there "manufacturing faulty and inflammatory misinformation that builds a prejudice against the innocent" (and cashing these manufactured statistics in for federal VAWA dollars) is UNCONSTITUTIONAL!!!, the biggest consequence would be the humbling of the American Gender / Raunch Empowerment" campaign.
I am a Washington native and still reside here. The precedent established by the State Supreme Court is appauling but not surprising.
What is equaly disturbing is that most Washingtonians are likely oblivious to this shift in rape adjudication.
In the 80's when feminists pushed for rape reform laws and politicians took the bait it was just a matter of time before the other shoe would drop and the burden of proof would be almost if not exclusively placed on the shoulders of the accused.
Although the actual number of false rape claims is elusive and difficult if not impossible to find, if you believe that a significant problem exists in our society with respect to false rape claims, just wait....if this precedent stands and finds favor in other states, the problem will become infinitely worse.
My son was falsely accused of rape in Washington State this last year. Immediately, the local women's advocacy group,DVSAS, began a vigilante campaign against us in as small community. During the course of this year we discovered horrendous collusion between DVSAS and the local law enforcement, prosecutors office and court system. Because of a letter I wrote the local newspaper exposing DVSAS and their connections, many people have come forward with horror stories of misconduct and injustice. My sympathies to "anonymous" who was intimidated enough by the unjust system to take the plea bargain. My son refused the plea offered to him, but with great fear. Only two weeks before trial, his case was dismissed. So much truth had been exposed about the accuser and, frankly, the impossibility of what she claimed to have occurred. This has taken a year of our lives and $40,000.00 in attorney fees. Moreover, our hearts truly go out to those innocents without the resources we fortunately possessed.
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