There is a gradual, but indisputable and disturbing, trend to engorge the definitions of rape and sexual assault in order to snag more convictions. All of these changes, which typically occur beneath the radar, are initiated at the behest of victims' advocates, and there is rarely ever more than cursory and superficial consideration given to insuring that innocent men and boys are not punished with the guilty. While everyone with a passing interest in this area knows about this trend, few are able to articulate exactly what is happening.
One of the most important, and startling, efforts to engorge the definition of rape has been to shift the burden of proving consent from the state to the accused. This is both important and starting because the very essence of rape law is the absence of consent, and shifting the burden of proof to the accused about a matter that goes to the essence of a criminal offense raises a host of due process concerns. To put it in plain English, shifting the burden of proof enhances the risk that the innocent will be punished with the guilty.
Few readers probably know that the U.S. military, the District of Columbia, and the state of Washington have already shifted the burden of proving consent to the accused. More about each below.
Bourque, Valenti, Alexandre, and Caringella
The shifting the burden of consent is an idea being pushed by extremist victims' advocates. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender."
Mainstream feminist guru Jessica Valenti (best known for the "Feministing" blog) advocates that America look to Swedish law as its legislative model for rape. "In fact," she notes without objection, "some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."
Valenti's suggestion is backed by serious feminist scholars. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent . . . ."
In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refuses to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates "a shift in the burden of proof to the defense [that] would entail that the defense establish, with a preponderance of the evidence, that it was more likely than not that the woman alleging the rape did give clear indications of freely chosen agreement to engage in the sex acts. Affirmative consent constitutes the kind of consent that would be . . . necessary to overcome the presumptive or implied nonagreement in the law. . . . . What the defense would be required to do would be to introduce adequate evidence to show that the alleged victim did openly and affirmatively express a yes of her own free accord."
These egregious notions have already been given statutory articulation in three jurisdictions.
Article 120 of the Uniform Code of Military Justice, revised in 2006, removed "consent" as an element of rape and other forms of sexual assault and required the accused to raise "consent" as an affirmative defense and to prove it by a preponderance of the evidence. If an accused proves the affirmative defense, the burden shifts to the government to disprove the affirmative defense beyond a reasonable doubt.
It is a source of confusion how the prosecution could ever prove non-consent by a reasonable doubt after the accused has already proven consent by a preponderance of the evidence. But the more important problem is that a cry of rape literally turns the sex act into a presumptive crime.
In United States v. Neal, 68 M.J. 289 (2010), the U.S. Court of Appeals for the Armed Forces explained why shifting the burden of proof was proper in words that are as chilling as they are peculiar: "When sexual abuse by members of the armed forces occurs within a military organization, it can have a devastating impact on the good order and discipline essential to the conduct of military operations. When sexual abuse by deployed military personnel involves civilians, it can undermine relationships with the local population critical to our Nation's military and foreign policy objectives. These factors illustrate the importance of recognizing the broad authority of Congress to regulate the conduct of military personnel. That authority includes the power to define rape and its related offenses in a manner that does not require proof on the subject of consent, notwithstanding the traditional requirement in military and civilian law for such proof."
(Recently, there was a rare moment of sanity when a military court ruled that forcing the accused to prove consent in a case of aggravated sexual assault where the alleged victim was supposedly "substantially incapacitated" was unconstitutional because the absence of consent is implicit in the nature of substantial incapacitation. United States v. Prather, 69 M.J. 338 (2011).)
District of Columbia
In the District of Columbia, a sexual abuse statute, which encompasses any sex act committed by force or which places a victim in fear ob bodily injury, puts the burden on the accused to show consent. D.C. CODE § 22-3007 (2007). A court explained that the statute "was intended . . . to change the focus of the criminal process away from an inquiry into the state of mind or acts of the victim to an inquiry into the conduct of the accused." Russell v. United States, 698 A.2d 1007, 1009 (D.C. App. 1997).
Moreover, as Prof. Richard Klein explains here, in Washington state, courts typically include 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." Prof. Klein explains that this instruction was challenged in 2006, but the court allowed it to stand.