Even though it was based on protecting one's constitutional rights, this decision feels like regression. On Thursday, the Washington Supreme Court ruled that rape defendants cannot be required to provide proof of consent. Basically, the ruling says, "If you're doing the accusing, then you have to do the proving." Not only does this decision affect future rape victims, who are now burdened with providing proof, it also reverses previous convictions and a undoes a landmark 1975 decision to modify legislation to better protect the victims in rape cases. Now, in 2014, when sexual assault is one of the most pervasive and serious problems of our society, accused rapists are getting a break while the victims have one more reason to not report rape.
In a 6-3 ruling, the court overturned its previous decision that required an accused rapist to present sufficient evidence that a victim had consented to sex. The justices said that that burden violated constitutionally protected rights, inaccurately interpreted precedent set by the Supreme Court, and were "incorrect and harmful." That is, harmful for the accused rapists. Justice Debra Stephens wrote in the ruling:
Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due process principles.
What's more, it also creates "a very real possibility of wrongful convictions."
The ruling had some very immediate and concrete impact, reversing the conviction of a rape defendant, who had appealed his decision saying that his right to due process was violated when he was forced to provide proof that his accuser had consented. The court's resulting ruling on Thursday stated:
This impermissible shift in burden is not merely academic but risks compartmentalizing forcible compulsion and consent, raising a very real possibility of wrongful convictions.
However, the ruling is a simple case of not seeing the forest for the trees. The court is focusing on righting a wrong with one aspect of the overall rape legislation, but that overall legislation needs to help prevent rape from happening in the first place, and that starts with protecting the victim, not the accused. A fundamental priority in this legislation should be to encourage victims from reporting cases without fear, but this ruling specifically does the opposite.
Before 1975, state law defined rape as "sex committed against the person’s will and without the person’s consent," which required the victim and her prosecuting team to present evidence that she had not consented. That focus on the victim's actions, rather than the conduct of the accused, discouraged women from coming forward and reporting their crimes. To better protect the victims in rape cases, legislation was modified to shift that burden on to the alleged rapists. Justice Susan Owens wrote in her dissent:
In 1975, the legislature took an important step toward justice for rape victims when it modified the laws to focus on the conduct of the perpetrator and not the victim.... Not only does the majority’s decision invalidate years of work undertaken to properly refocus our rape law, but it also has serious implications for victims of an already underreported type of crime.Like I said, seems totally regressive, doesn't it?
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