        FILE
        IN CLERKS OFFICE
IIJIREME COURT, STATE OF WASH1NGTON

     DATE      SEP 1 9 2013
7nUkiMio/CHIEF JUS leE




   IN THE SUPREME COURT OF THE STATE OF WASHINGTON

   STATE OF WASHINGTON,                  )
                                      ----)   ----   --   --




                     Respondent,         )                     No. 87882-0
                                         )
   v.                                    )                     ENBANC
                                         )
   JEFFREY THOMAS LYNCH,                 )                                 SEP 1 9 2013
                                                               Filed: ------------------
                                         )
                      Petitioner.        )
   _______________________)
            FAIRHURST, J.-The State charged Jeffrey Thomas Lynch with indecent

   liberties and second degree rape. At trial, Lynch's defense to the rape charge was

   that the State failed to prove forcible compulsion because the alleged victim, T.S.,

   consented to the sexual intercourse. Over Lynch's objection, the trial court

   instructed the jury that Lynch had the burden to prove consent by a preponderance

   of the evidence. The jury found Lynch guilty of the crimes charged. The Court of

   Appeals affirmed Lynch's second degree rape conviction but reversed the indecent

    liberties conviction. We hold that the trial court violated Lynch's Sixth
State v. Lynch, No. 87882-0


Amendment right to control his defense by instructing the jury on the affirmative

defense over Lynch's objection and that such error was not harmless.

                       FACTS AND PROCEDURAL HISTORY

       The State charged Lynch with second degree rape and indecent liberties after

T.S. reported to the police that Lynch had forcibly penetrated her vagina with his

finger and placed her hand on his penis. These incidents allegedly took place

during the middle of the night at Lynch's apartment after Lynch and T.S. had

falfel1 asleep on the couch while watching a movie. Although -T.S. 's young son and

a friend of T.S.'s were asleep in an adjacent bedroom, there were no witnesses to

the alleged crimes besides T.S. and Lynch. T.S. claimed that she physically and

verbally resisted Lynch's advances but that Lynch overpowered her. Lynch

admitted that he digitally penetrated T.S.'s vagina but claimed that T.S. consented

to his conduct. Lynch denied ever forcing T.S. to place her hand on his penis.

       Lynch's case proceeded to a jury trial. At the conclusion of trial, the court

gave the following jury instruction at the State's request:

              A person is not guilty of RAPE or INDECENT LIBERTIES if
       the sexual intercourse or sexual contact is consensual. Consent means
       that at the time of the act of sexual intercourse or sexual contact there
       are actual words or conduct indicating freely given agreement to have
       sexual intercourse or sexual contact.

              The defendant has the burden of proving that the sexual
       intercourse or sexual contact was consensual by a preponderance of
       the evidence. Preponderance of the evidence means that you must be
       persuaded, considering all of the evidence in the case, that it is more
                                           2
State v. Lynch, No. 87882-0


       probably true than not true. If you find that the defendant has
       established this defense, it will be your duty to return a verdict of not
       guilty.

Clerk's Papers at 66. Lynch objected to the consent instruction on the grounds that

he had the right to control his defense and because he did not want to bear the

burden of proving consent. Lynch argued that he introduced evidence that T.S. had

consented in order to create a reasonable doubt about whether the State had proved

the element of forcible compulsion.

        Tne jury found Lynch guilty on both     cnarges. After the trial court denied
Lynch's motion for a new trial, Lynch appealed the guilty verdicts and certain

community custody conditions imposed in his judgment and sentence. In an

unpublished opinion, the Court of Appeals affirmed in part and reversed in part

and remanded. State v. Lynch, noted at 170 Wn. App. 1001 (2012). The Court of

Appeals affirmed the second degree rape conviction but reversed the indecent

liberties conviction. The Court of Appeals also vacated the community custody

conditions that Lynch contested and remanded for further proceedings. Lynch

sought review by this court to address the errors assigned to his second degree rape

conviction. Neither Lynch nor the State sought review of the Court of Appeals'

reversal of the indecent liberties conviction or vacation of the community custody

 conditions. We granted review. State v. Lynch, 176 Wn.2d 1016, 298 P.3d 704

 (2013).


                                           3
         State v. Lynch, No. 87882-0


                                                ISSUES

               A.    Did the trial court violate Lynch's Sixth Amendment right to control
         his defense by instructing the jury on the affirmative defense of consent over
         Lynch's objections?

                B.     Is the constitutional error harmless?

                                              ANALYSIS

                "We review allegations of constitutional violations de novo." State v. Siers,

          174 Wn.2d 269, 273-74, 274 P.3d 358 (2012) (citing State v. Vance, 168 Wn.2d

- --- ---- 754, 759, 23o-P.3a 1o55 (2010)).

          A.    Did the trial court violate Lynch's Sixth Amendment right to control his
                defense by instructing the jury on the affirmative defense of consent over
                Lynch's objections?

                The Sixth Amendment to the United States Constitution provides:

                In all criminal prosecutions, the accused shall enjoy the right to a
                speedy and public trial, by an impartial jury ... , and to be informed of
                the nature and cause of the accusation; to be confronted with the
                witnesses against him; to have compulsory process for obtaining
                witnesses in his favor, and to have the assistance of counsel for his
                defense.

          Implicit in the Sixth Amendment is the criminal defendant's right to control his

          defense. See Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d

          562 (1975) ("Although not stated in the [Sixth] Amendment in so many words, the

          right ... to make one's own defense personally[] is thus necessarily implied by the

          structure of the Amendment."); State v. Jones, 99 Wn.2d 735, 740, 644 P.2d 1216

          (1983) ("Faretta embodies 'the conviction that a defendant has the right to decide,
                                                    4
State v. Lynch, No. 87882-0


within limits, the type of defense he wishes to mount."' (quoting United States v.

Laura, 607 F.2d 52, 56 (3d Cir. 1979))). The defendant's right to control his

defense is necessary "to further the truth-seeking aim of a criminal trial and to

respect individual dignity and autonomy." State v. Coristine, 177 Wn.2d 370, 376,

 300 P.3d 400 (2013).

       "Instructing the JUry on an affirmative defense over the defendant's

 objection violates the Sixth Amendment by interfering with the defendant's

-autonOmy to present -a defense.''   Ia.   af375; see also Jones,-9-9 Wn.2d at 739-(trial

 court violated defendant's right to control his defense by forcing the defendant to

 enter a not guilty by reason of insanity plea and appointing amicus counsel to

 argue the insanity defense over defendant's objections); State v. McSorley, 128

 Wn. App. 598, 605, 116 P.3d 431 (2005) (trial court violated defendant's right to

 control his defense by instructing the jury on an affirmative defense to the crime of

 child luring over defendant's objection).

       This court's recent decision in Coristine is dispositive in resolving this case.

 In Coristine, the State charged Brandon Coristine with second degree rape after he

 had sexual intercourse with L.F. after L.F. had been drinking at a party at

 Coristine's house. The State charged Coristine under RCW 9A.44.050(1)(b), which

 states that a person is guilty of second degree rape if the "victim is incapable of

 consent by reason of being physically helpless or mentally incapacitated."


                                               5
         State v. Lynch, No. 87882-0


         Coristine's trial strategy throughout the case was to show that the State failed to

         prove that L.F. was physically helpless or mentally incapacitated during sexual

         intercourse.

                At the close of evidence, the trial court in Coristine held an instruction

         conference to decide whether it should instruct the jury on the affirmative defense

         of reasonable belief. See RCW 9A.44.030(1). Under RCW 9A.44.030(1), a

         defendant is not guilty of second degree rape if the defendant "reasonably

-- ------ -oelieved''-that -the -alleged viCtim \vas-tiot menfall)' inc-apacitated   or- physicaUy
         helpless. The defendant has the burden of provmg reasonable belief by a

         preponderance of the evidence. I d. At the instruction conference, the State argued

         that the court was required to give the instruction because Coristine had

         "'bolster[ ed]' his case by offering ' ... additional evidence' that the victim was not

         incapacitated." Coristine, 177 Wn.2d at 374 (first alteration in original) (quoting 3

         Verbatim Report of Proceedings at 395).         Coristine objected to the instruction

         because he did not want the burden of proof. Coristine "reiterated his failure-of-

         proof defense, arguing that testimony from defense witnesses about L.F. 's alcohol

          consumption and behavior at the party cast doubt on the State's allegation that L.F.

          was physically helpless or mentally incapacitated during sexual intercourse." Id. at

          374-75.




                                                     6
State v. Lynch, No. 87882-0


       The trial court instructed the jury on the re·asonable belief affirmative

defense over Coristine's objections, and the jury found Coristine guilty. The Court

of Appeals affirmed. This court reversed the Court of Appeals, holding that "[t]he

Sixth Amendment right to control one's defense encompasses the decision to

present an affirmative defense." !d. at 376. We reasoned, "Imposing a defense on

an unwilling defendant impinges on the independent autonomy the accused must

have to defend against charges." !d. at 377.

···· - -In   -th1s -case, -the   trial court violated Lynch's Sixth Amendment right to

control his defense by instructing the jury on the affirmative defense of consent

over Lynch's objections. Like Coristine, Lynch attempted to cast doubt on an

element of the State's case-the element of forcible compulsion. Also like

Coristine, Lynch objected to the affirmative defense instruction because he did not

want the burden of proof. By "[i]mposing a defense on an unwilling defendant,"

the trial court "impinge[d]" Lynch's autonomy to conduct his defense. !d. The

State argues that the consent instruction was justified because Lynch introduced

evidence that T.S. consented. But in Coristine, we rejected a similar argument

made by the State that evidence presented by Coristine bolstering his case

somehow justified instructing the jury on an affirmative defense. In accordance

with Coristine, we hold that the trial court violated Lynch's Sixth Amendment




                                                7
          State v. Lynch, No. 87882-0


          right to control his defense by instructing the jury on the affirmative defense of

           consent over Lynch's objection.

           B.         Is the constitutional error harmless?

                       "[I]f trial error is of constitutional magnitude, prejudice is presumed and the

           State bears the burden of proving it was harmless beyond a reasonable doubt." Id.

           at 380 (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d

           705 (1967)). "[A] violation of the defendant's right to control his own defense may
------------------   -------------   ---   ---   --   ----------   ------------------       --------------------------------------------


           be subject to review for harmless error." Id. (citing Jones, 99 Wn.2d at 748).

                       The State argues that any constitutional error was harmless because "there

           was no inconsistency between the consent instruction and the defense Lynch

           advanced with respect to second-degree rape." Br. ofResp't at 17. Contrary to the

           State's argument, however, instructing the jury that Lynch had the burden of

           proving consent was inconsistent with Lynch's trial strategy of casting doubt on

           the element of forcible compulsion. The consent instruction imposed a burden on

           Lynch that was greater than the burden necessary to create a reasonable doubt

           about forcible compulsion. See Martin v. Ohio, 480 U.S. 228, 234, 107 S. Ct. 1098,

           94 L. Ed. 2d 267 (1987) (noting that evidence creating a reasonable doubt about an

           element of a crime "could easily fall far short" of proving a defense by a

           preponderance of the evidence).




                                                                                        8
             State v. Lynch, No. 87882-0


                    Even if we accepted the State's argument that there was "no inconsistency"

             between the instruction and Lynch's defense, this fact alone is not enough to prove

             harmless error. Br. of Resp't at 17. In Coristine, we held that the State failed to

             prove harmless error in part because "[a] deprivation of [a defendant's right to

             control his defense] is error even if the trial court's instructions in the law are a

             model of accuracy." 177 Wn.2d at 381. We further stated, "[I]f seizing control over

             a defendant's trial strategy were harmless so long as the court correctly instructed

--------------the jury   in th-e -defense iCcnose, litHe woufd remafnoftfle Sixth Amendmerif right
             to control one's defense." !d. We acknowledge that the consent instruction, derived

             from 11 Washington Practice: Washington Pattern Jury Instructions Criminal

             18.25 (3d ed. 2011), was an accurate statement of the law. This court even

             approved the use of a similar instruction in a similar context in State v. Gregory,

             158 Wn.2d 759, 801, 147 P.3d 1201 (2006). Under Coristine, however, giving

             such an instruction over a defendant's objection violates the defendant's right to

             control his defense regardless of the instruction's accuracy.

                    In a similar vein, the State argues that any error was harmless "because the

             consent instruction did not come into play until the jury had evaluated whether the

             State established its burden of proof." Br. ofResp't at 18-19. The State seems to be

             arguing that the consent instruction was harmless because the instruction regarding

             the State's burden (to prove all the elements of the crimes beyond a reasonable


                                                         9
State v. Lynch, No. 87882-0


doubt) was accurate. In support of its assertion, however, the State offers nothing

more than the conclusory statement that "the jury would have found Lynch guilty

of both crimes regardless of the consent instruction." !d. at 19. The State fails to

prove that instructing the jury on an affirmative defense over Lynch's objections

was harmless beyond a reasonable doubt.

                                  CONCLUSION

       The trial court violated Lynch's Sixth Amendment right to control his

aeferise when -ff -instructed the jury on the affirmatfve -defense of consent over

Lynch's objections. The State fails to prove that this error was harmless beyond a

reasonable doubt. We reverse the Court of Appeals to the extent it held that the

trial court did not violate Lynch's right to control his defense. We vacate Lynch's

second degree rape conviction and remand for a new trial. Because we reverse on

Sixth Amendment grounds, it is not necessary to decide whether the consent

instruction impermissibly shifted the burden of proof to Lynch in violation of the

Fourteenth Amendment.




                                          10
State v. Lynch, No. 87882-0




WE CONCUR:




                              11
State v. Lynch (Jeffrey Thomas)




                                       No. 87882-0


           ----   ---   -   -----               -----   ---   --   ----   -   ---------


      GORDON McCLOUD, J. (concurring)-The majority is correct that "the

trial court violated [Jeffrey] Lynch's Sixth Amendment right to control his defense

by instructing the jury on the affirmative defense over Lynch's objection."

Majority at 1-2. The majority is also correct that such a Sixth Amendment error is

subject to harmless error review and that this error was not harmless. Jd. at 2, 8.

The reason the instruction caused so much harm, though, is not just that it was

unwanted. The major harm was caused by the fact that the unwanted instruction

was itself unconstitutional.        As the majority states, "The consent instruction

imposed a burden on Lynch that was greater than the burden necessary to create a

reasonable doubt about forcible compulsion." Id. at 8 (citing Martin v. Ohio, 480

U.S. 228, 234, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987)).

      In fact, that unwanted instruction impermissibly shifted the burden on that

element away from the State and on to Mr. Lynch. Such impermissible shifting of
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



the burden of proof is a Fourteenth Amendment due process clause problem. The

source of that problem is this court's decisions in State v. Camara, 113 Wn.2d 631,

781 P.2d 483 (1989) and State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006).

It is now clear that those two decisions conflict directly with United States

Supreme Court precedent interpreting the due process clause.               They also

misconstrue the legislative intent embodied in Washington's rape laws. Camara

and Gregory are therefore incorrect and harmful and should be overruled.

      I.     Due Process

       Jeffrey Lynch was charged with indecent liberties and second degree rape.

The statutes under which he was convicted define those crimes as "sexual contact" 1

and "sexual intercourse," 2 respectively, "[b]y forcible compulsion." 3     The trial

court instructed the jury that Lynch "ha[ d] the burden of proving that the sexual

intercourse or sexual contact was consensual by a preponderance of the evidence."

Clerk's Papers (CP) at 66. Lynch maintains that this instruction violated the due

process clause of the Fourteenth Amendment by relieving the prosecution of its

duty to prove the element of "forcible compulsion."




       1
         RCW 9A.44.100(l)(a) (defining the crime of indecent liberties).
       2
         RCW 9A.44.050(l)(a) (defining the crime of second degree rape).
       3
         RCW 9A.44.050(l)(a), .lOO(l)(a).

                                           2
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



      Mr. Lynch is correct that the due process clause of the Fourteenth

Amendment prohibits a State from convicting any defendant unless the prosecution

has proved beyond a reasonable doubt every element of the crime charged. In re

Winship, 397 U.S. 358, 360-61, 90S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Because

this rule "is concerned with substance rather than ... formalism," a State may not

lessen the prosecutorial burden by characterizing as an affirmative defense (which

the defendant must prove by a preponderance) a fact that simply negates an

essential element of the offense. Mullaney v. Wilbur, 421 U.S. 684, 699, 704, 95

S. Ct. 1881, 44 L. Ed. 2d 508 (1975). To do so would be to presume the existence

of a fact necessary for conviction.

       While a State may not burden a defendant with disproving an element of the

crime charged, it may require a defendant to prove the existence of mitigating

factors. In Patterson v. New York, 432 U.S. 197, 207, 97 S. Ct. 2319, 53 L. Ed. 2d

281 (1977), the Court held that a defendant could be burdened with proving such a

factor, as long as it "does not serve to negative any facts of the crime." The

Patterson Court's primary concern was to permit state legislatures to recognize

mitigating circumstances (by codifying affirmative defenses) without thereby




                                           3
      State v. Lynch (Jeffrey Thomas), No. 87882-0
      (Gordon McCloud, J., Concurrence)



      increasing the prosecutorial burden. 4 To this end, it upheld a statute requiring a

      defendant charged with second degree murder to prove that the defendant had

      "acted under the influence of extreme emotional disturbance." Id. at 206. In doing

      so, however, the Patterson Court cautioned that there are "constitutional limits" on

      the State's authority to "reallocate burdens of proof':

                         This [decision] may seem to permit state legislatures to
~~--~--   --   ---n~alloGate-hurderts-of-proof-hy-labeling-as-at':tirmative--defenses-atleast------ ~~ ---   -- -
                 some elements of the crimes now defined in their statutes. But there
                 are obviously constitutional limits beyond which the States may not
                 go in this regard. "[I]t is not within the province of a legislature to
                 declare an individual guilty or presumptively guilty of a crime."

      Id. at 210 (quoting McFarland v. Am. Sugar Ref Co., 241 U.S. 79, 86, 36 S. Ct.

      498, 60 L. Ed. 899 (1916) (second alteration in original)).

                 The Court revisited these "constitutional limits" 10 years later in Martin,

      480 U.S. 228. In that case, the Court applied Patterson's holding to a statute that

      required defendants charged with aggravated murder to prove that they had acted

      in self-defense. The Martin Court upheld the statute, reasoning that "the elements

      of aggravated murder and self-defense overlap [only] in the sense that evidence to

      prove the latter will often tend to negate the former." !d. at 234 (emphasis added).


                 4
                     See Patterson, 432 U.S. at 209 ("To recognize at all a mitigating circumstance
      does not require the State to prove its nonexistence in each case in which the fact is put in
      issue, if in its judgment this would be too cumbersome, too expensive, and too
      inaccurate.").

                                                         4
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



Essential to the Court's holding was the fact that because self-defense could

coexist with "a purposeful killing by prior calculation and design" (the elements of

aggravated murder under Ohio law), "Ohio does not shift to the defendant the

burden of disproving any element of the state's case." Id.

      The overwhelming majority of courts that have considered the issue,

interpret Patterson and/or Martin as holding that a court violates the due process

clause of the United States Constitution if it requires a defendant to prove any fact

that necessarily negates an element of the crime charged. 5




       5
         The following jurisdictions interpret Patterson, 432 U.S. 197, or Martin v. Ohio,
480 U.S. 228, to hold that a court violates due process if it requires a defendant to prove
any fact that negates an element of the crime charged: United States v. Prather, 69 M.J.
338, 342-43 (C.A.A.F. 2011); United States v. Moore, 397 U.S. App. D.C. 148, 651 FJd
30, 89 (2011); United States v. Leahy, 473 F.3d 401, 409 (1st Cir. 2007); United States v.
Deleveaux, 205 F.3d 1292, 1298-1300 (11th Cir. 2000); United States v. Unser, 165 F.3d
755, 764 (lOth Cir. 1999); United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000);
United States v. Toney, 27 FJd 1245, 1250-51 (7th Cir. 1994); Gov't of Virgin Islands v.
Smith, 949 F.2d 677, 680-83 (3d Cir. 1991); Holloway v. McElroy, 632 F.2d 605, 625,
626 n.33, 628 (5th Cir. 1980), overruled on other grounds by Baker v. Montgomery, 811
F.2d 557 (11th Cir. 1987); State v. Drej, 2010 UT 35, ,-r 14, 233 P.3d 476, 481 (2010);
State v. Powdrill, 95-2307, (La. 11/25/96); 684 So. 2d 350, 355; Barone v. State, 109
Nev. 778, 858 P.2d 27, 28-29 (1993); State v. Baker, 154 Vt. 411, 579 A.2d 479, 481
(1990); State v. Charlton, 338 N.W.2d 26, 30-31 (Minn. 1983); Ward v. State, 438
N.E.2d 750, 753 (Ind. 1982); State v. Schulz, 102 Wis. 2d 423, 307 N.W.2d 151, 155-56
(1981); Commonwealth v. Hilbert, 476 Pa. 288, 297, 382 A.2d 724 (1978); In re Doe,
120 R.I. 732, 739-40, 390 A.2d 920 (1978). By contrast, only two jurisdictions have
adopted the view that the prosecution has no constitutional duty to disprove an element-
negating defense. See Smart v. Leeke, 873 F.2d 1558, 1565 & n.9 (4th Cir. 1989);
Hobgood v. Housewright, 698 F.2d 962, 963 (8th Cir. 1983).

                                             5
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



      This court interpreted Martin in Camara, 113 Wn.2d 631, where the

defendant, like Lynch, faced a second degree rape charge. Camara, like Lynch,

challenged a jury instruction because it implied that he had to affirmatively prove

that his alleged victim consented to sexual intercourse.       Id. at 635.   Camara

maintained that the instruction impermissibly shifted the burden of proof, since it

could lead a reasonable juror to believe that he or she had to convict unless Camara

disproved the State's allegation of forcible compulsion. !d.

       This court rejected Camara's claim, even though it appeared to agree that

consent "negates" the forcible compulsion element of a rape charge. It affirmed

Camara's conviction because it interpreted Martin to hold that the question

whether an affirmative defense "negates" an element of the charged crime lacked

constitutional significance. Camara, 113 Wn.2d at 640.

       In reaching that conclusion, this court modified the two-part test (derived

from Patterson) that it had previously used to determine whether a defendant could

be burdened with proving a defense. Camara, 113 Wn.2d at 638 (quoting State v.

McCullum, 98 Wn.2d 484, 490, 656 P.2d 1064 (1983) (quoting Patterson, 432

U.S. at 210)). Under the Patterson-derived test, this court asked first whether the

legislature intended to equate an element of the crime with the "absence" of the

defense in question and second whether any element of the defense in question in


                                           6
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



fact negated an element of the crime. !d. An affirmative answer to either question

meant that the State bore the burden of disproving the defense:

      "There are two ways to determine if the absence of a defense is an
      ingredient of the offense: (1) the statute may reflect a legislative
      intent to treat absence of a defense as one 'of the elements included in
      the definition of the offense of which the defendant is charged'; or (2)
      one or more elements of the defense may 'negate' one or more
      elements of the offense which the prosecution must prove beyond a
      reasonable doubt."

Camara, 113 Wn.2d at 63 8 (quoting McCullum, 98 Wn.2d at 490 (quoting

Patterson, 432 U.S. at 210)).

       Applying the first prong of the test, the Camara court concluded that

Washington's legislature had intentionally shifted the burden of proof on consent

to the defendant when it reformed the State's rape statutes in 1975. !d. at 638-39.

Turning to the second prong, it concluded that under Martin, due process

protections are not offended simply because a defendant is required to "negate" an

element of the crime charged:

             Following Martin, it appears that assignment of the burden of
       proof on a defense to the defendant is not precluded by the fact that
       the defense "negates" an element of a crime. Thus, while there is a
       conceptual overlap between the consent defense to rape and the rape
       crime's element of forcible compulsion, we cannot hold that for that
       reason alone the burden of proof on consent must rest with the State.




                                           7
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



Camara, 113 Wn.2d at 640.             In reaching this conclusion, the Camara court

conflated affirmative defenses that "overlap" an element of the charged crime, such

as Martin addressed, with those that "negate" an element of the crime, such as

Mullaney addressed.        It interpreted Martin to cast "substantial doubt" on the

propriety of what it termed "this 'negates' analysis"-the second prong of the

Patterson-derived test-and declined to apply that analysis at all to Camara's

appeal.    Id.   Seven years later, this court reaffirmed Camara in Gregory, 158

Wn.2d at 803. The Gregory court stated that "the Martin analysis clearly supports

the Camara court's conclusion." 6




       6
         Gregory, 158 Wn.2d at 803. Two Justices disagreed with the Gregory
majority's reading of Martin and wrote separately to argue that the court should have
overruled Camara:

             Consent is the reciprocal opposite of forcible compulsion. . . . Allen
       Gregory now asks us to overrule Camara, arguing that Camara
       misconstrued Martin. I agree with Gregory and would overrule Camara.



              . . . [I]n the context of first degree rape, forcible compulsion (an
       element of the offense) is absolutely incompatible with consent. The two
       cannot coexist. . . . Camara was wrongly decided and harmfully so
       because it allows an unconstitutional shifting of the burden of proof. It
       should be overruled.

 ld. at 868-69 (Sanders, J., concurring in result).

                                               8
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



      This reading of Martin was highly questionable when Camara was decided,

and has survived in only a small minority of jurisdictions. 7 Indeed, even this court

continued to apply both prongs of the "negates analysis" after Camara, despite

purportedly rejecting its constitutional prong in that case. 8

        Today, there is no question that Camara's reasoning conflicts with United

States Supreme Court precedent. In Smith v. United States,_ U.S._, 133 S. Ct.

714, 184 L. Ed. 2d 570 (2013), the Court clarified that the prosecution must always

bear the burden of disproving a defense that controverts an element of the charged

cnme:

        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." Martin v. Ohio, 480 U.S. [at 237] (Powell, J.,
        dissenting). Where instead it "excus[es] conduct that would otherwise
        be punishable," but "does not controvert any of the elements of the
        offense itself," the Government has no constitutional duty to


        7
         See supra note 5, listing the jurisdictions that interpret Patterson and/or Martin
to hold that prosecution has a constitutional duty to disprove any affirmative defense that
negates an element of the crime charged.
       8
         See, e.g., State v. Deer, 175 Wn.2d 725, 734 & n.5, 287 P.3d 539 (2012) ("It is
generally recognized that the defendant bears the burden of proving an affinnative
defense by a preponderance of the evidence. The sole exception is when a defense
'negates' an element of the charged offense, in which case due process requires the State
to bear the burden of disproving the defense." (footnote omitted)), cert. denied, 133 S. Ct.
991 (2013); State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996) ("If a statute
indicates an intent to include absence of a defense as an element of the offense, or the
defense negates one or more elements of the offense, the State has a constitutional burden
to prove the absence of the defense beyond a reasonable doubt.").

                                             9
  State v. Lynch (Jeffrey Thomas), No. 87882-0
  (Gordon McCloud, J., Concurrence)



         overcome the defense beyond a reasonable doubt. Dixon v. United
         States, 548 U.S. 1, 6, 126 S. Ct. 2437, 165 L. Ed. 2d 299 (2006).

  Smith, 133 S. Ct. at 719 (second alteration in original).

         If Martin created any doubts as to the constitutional distinction between

   defenses that "excuse" a crime (or "overlap" an element), on the one hand, and

  those that "negate" an element of the crime charged, on the other, Smith resolved

--- those doubts. J'he State -may- burd<.?n a dgfgndant- -with proving -a defense -that

   "excuses" the crime or that "overlaps" one of its elements, but the State may not

   burden a defendant with proving a defense that "negates" an element. Camara and

   its progeny are inconsistent with that rule. 9

         II.    Washington's Rape Statute



         9
           That consent logically "negates" that the element of forcible compulsion is
   amply demonstrated by the questions Lynch's jury submitted during its deliberations:

         [The instructions seem] contradictory re: burden of proof law. (1) State
         needs to prove beyond reasonable doubt re: 2nd degree rape charge ...
         The defendant has the burden of proof re: that the sexual intercourse or
         sexual contact was consensual.

          Does the defendant bear the burden of proving that indecent liberties did
          not occur?

          Do we assume that indecent liberties occurred unless the evidence shows us
          otherwise?

   CP at 47.


                                               10
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



      The Camara court based its decision in part on the legislative history of our

State's rape statutes. It concluded that Washington's 1975 rape statute reforms

were intended to burden the defense with proving consent. Camara, 113 Wn.2d at

639. This conclusion is incorrect.

      As support for this conclusion, the Camara court cited only a brief passage

from a law review article, which noted that Washington's 1975 reform law

emphasized the perpetrator's conduct, rather than the victim's reaction:

             [W]e believe the removal from the prior rape statute of
      language expressly referring to nonconsent evidences legislative
      intent to shift the burden of proof on that issue to the defense. This
      conclusion finds support in the history and purposes of rape law
      reform:

             The new law channels the jury's focus, via instructions,
             on the culpability of the actor rather than the response of
             the victim. . . . The reform statutes announce society's
             interest in accurately identifying perpetrators of rape, not
             in reinforcing traditional assumptions regarding
             appropriate behavior of [virtuous] [men and] women.

I d. at 638-39 (citations omitted) (alterations in original) (quoting Wallace Loh, The

Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical

Study, 55 WASH. L. REV. 543,557 (1980)).




                                           11
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



      The Camara court's reasoning misrepresents both our legislature's intent

and Professor Wallace Loh's widely .cited article on the 1975 reforms. 10 The

history of those reforms, which Loh' s article covers at length, reveals that they

were not intended to remove nonconsent as an element of rape.

                A. Statutory Construction

      At the outset, it should be noted that resort to the legislative history of

Washington's rape laws, while informative, is not necessary to interpret the

provisions under which Lynch was charged.               The purpose of statutory

interpretation is "'to determine and give effect to the intent of the legislature.'"

State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013) (quoting State v.

Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)). "When possible, we derive

legislative intent solely from the plain language enacted by the legislature,

considering the text of the provision in question, the context of the statute in which

the provision is found, related provisions, and the statutory scheme as a whole."

Id. (citing State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)). "Plain

language that is not ambiguous does not require construction." !d. (citing State v.

Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003)). Read in context, the second




       10
            See infra Part II.B 1-3.

                                            12
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



degree rape statute under which Lynch was charged is not ambiguous; it plainly

excludes language that would burden the defendant with proving consent.

       This is clear from the structure of chapter 9A.44 RCW, which covers sex

offenses. Four provisions of that chapter expressly recognize affirmative defenses

to rape and other sex offenses.         RCW 9A.44.050(1)(d) makes consent an

affirmative defense to second degree rape when "the perpetrator is a health care

provider, the victim is a client or patient, and the sexual intercourse occurs during a

treatment session, consultation, interview, or examination." RCW 9A.44.100(1)(d)

provides an identical defense for health care providers charged with indecent

liberties.   RCW 9A.44.030, which is titled "defenses to prosecution under this

chapter," codifies several "reasonable belief' defenses to prosecutions in which

"lack of consent is based solely upon the victim's mental incapacity or . . .

physical[] helpless[ness]" or in which "the offense or degree of the offense

depends upon the victim's age." Finally, RCW 9A.44.180 provides that it is an

affirmative defense to a charge of custodial sexual misconduct that "the act of

sexual intercourse or sexual contact resulted from forcible compulsion by the other

person."

       Outside of these four provisions, chapter 9A.44 RCW contains no reference

to any affirmative defense.      "[T]he legislature is deemed to intend a different


                                           13
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



meaning when it uses different terms," State v. Roggenkamp, 153 Wn.2d 614, 625,

106 P.3d 196 (2005) (citing State v. Beaver, 148 Wn.2d 338, 343, 60 P.3d 586

(2002)), and a "court will not read into [a] statute the language that it believes was

omitted," State v. Moses, 145 Wn.2d 370, 374, 37 P.3d 1216 (2002) (citing Jenkins

v. Bellingham Mun. Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981)).                     In

accordance with these rules, where the legislature includes particular language in

one section of a statute but omits it in another, the exclusion is presumed

intentional. Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1089-

90 (9th Cir. 2011) (quoting Kucana v. Holder, 558 U.S. 233, 249, 130 S. Ct. 827,

838, 175 L. Ed. 2d 694 (2010)). In chapter 9A.44 RCW, Washington's legislature

expressly provided for affirmative defenses to five specific categories of offense. 11

Our legislature chose not to codify any affirmative defenses to the crime of sexual

intercourse or contact by forcible compulsion. The rules of statutory interpretation

prohibit this court from reading in an affirmative defense that the legislature

elected to omit.


       11
         These categories are ( 1) second degree rape where the perpetrator is the victim's
health care provider and the sexual intercourse occurs during a treatment session, RCW
9A.44.050(l)(d); (2) indecent liberties occurring during a treatment session, RCW
9A.44.100(l)(d); (3) offenses in which lack of consent is based solely upon the victim's
mental incapacity or physical helplessness, RCW 9A.44.030(1); (4) offenses defined in
tem1s of the victim's age, RCW 9A.44.030(2), (3); and (5) custodial sexual misconduct,
RCW 9A.44.180.

                                            14
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



              B. Legislative History

      While the plain language of chapter 9A.44 RCW suffices to resolve the

issue, the history of rape law reform in Washington also supports the conclusion

that our legislature did not intend to burden a defendant with proving consent

where that defendant was charged with sexual contact or intercourse by forcible

compulsion.     On the contrary, the history of rape law reform in Washington

indicates that our legislature has always regarded nonconsent as an essential

element of sexual intercourse or contact by forcible compulsion. 12

       Washington's rape law reform originated in efforts to revise the State's

entire criminal code in 1967, but was ultimately accomplished separately, by a

consortium of women's groups focused exclusively on the rape statutes. Loh,

supra, at 568-69.    The most instrumental member of this consortium was the

Seattle Women's Commission (SWC), but several other groups participated in

lobbying efforts, including the National Organization for Women (NOW), the

Washington State Women's Council, and representatives from rape crisis centers.




       12
         Forcible compulsion is an element of rape in the first degree, RCW
9A.44.040(1); rape in the second degree, in RCW 9A.44.050(1)(a); and indecent liberties,
in RCW 9A.44.100(1)(a).

                                           15
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)




!d. at 570 & n.151. 13 Reform advocates shared two primary objectives: first, to

address an alarming increase in the incidence of rape and second, to remove certain

barriers to prosecution that resulted in "an extremely low percentage of [rape]

convictions." Fact Sheet on Bill to Revise Present Rape Law at 1, S.B. 3173, 43d

Leg., 3d Ex. Sess. (Wash. 1974) (on file with Wash. State Archives). 14

      In all, four different rape law reform bills were proposed between 1974 and

1975. 15 The first of these bills to be introduced, Senate Bill 3173, would have

made nonconsent an express element of rape:

             Sec. 3. ( 1) Whether or not specifically stated, it is an element
       of rape that the sexual act was committed without consent of the
       victim.

             (2) Lack of consent results from:


       13
           See also Written Testimony of Jean Marie Brough, Legislative Coordinator for
Seattle NOW, to the S. Judiciary Comm. (Aug. 3, 1974) (on proposed S.B. 3173) (on file
with Wash. State Archives).
       14
           See also Seattle Women's Comm'n, A Study on Rape in the City of Seattle at 4-6
(1974) (on file with Wash. State Archives); Written testimony from Seattle NOW, supra
note 13; Deborah Fleck, Intern for H. Judiciary Comm., Is There a Need for Revision of
the Washington State Rape Law? (1974) (on file with Wash. State Archives). According
to Professor Loh, reform efforts by the SWC were also initially inspired by the
appearance of a bill proposed by the Washington Legislative Council's Judiciary
Committee, which would have required corroboration of a rape victim's testimony. Loh,
supra, at 568, 570. Washington's pre-reform rape statute had no such corroboration
requirement. !d. at 568.
        15
            S.H.B. 208, 44th Leg., Reg. Sess. (Wash. 1975); S.B. 2196, 44th Leg., Reg.
Sess. (Wash. 1975); S.B. 2198, 44th Leg., Reg. Sess. (Wash. 1975); S.B. 3173, 43d Leg.,
3d Ex. Sess. (Wash. 1974).


                                           16
            State v. Lynch (Jeffrey Thomas), No. 87882-0
            (Gordon McCloud, J., Conc~rrence)



                         (a)    Forcible compulsion; or

                         (b)    Use of threat; or

                         (c)    If the offense is rape m the third degree, lack of
                                manifestation of consent; or

                         (d)    Incapacity.

            S.B. 3173, 43d Leg., 3d Ex. Sess. (Wash. 1974). Senate Bill 3173 was drafted by

----------- -the -SWG-,-whose-then-V-iGe-Pre-sident--JaGkie- Griswold-Goauthored-the- reform -bill

            that was ultimately enacted in 1975. 16

                   Under some circumstances, the legislature's failure to enact an amendment

            may be seen as a rejection of the amendment's substance. State v. Schwab, 103

            Wn.2d 542, 551-52, 693 P.2d 108 (1985).           In the absence of other relevant

            evidence, this court might infer from the legislature's failure to enact Senate Bill

            3173 that lawmakers considered and rejected consent as an element of rape. In this

            case, however, such an inference is unwarranted. "[T]he fact or happenstance of

             successive drafts" is not "an absolute determinant" of legislative intent, and

            presumptions based on that sequence may be negated by other evidence. Hama

            Hama Co. v. Shorelines Hr'gs Bd., 85 Wn.2d 441, 449-50, 536 P.2d 157 (1975)

             (emphasis omitted); see also State v. Martin, 94 Wn.2d 1, 19, 614 P.2d 164 (1980).
                   16
                      Comparison of Existing Rape Law and Proposed SB 3173 (Seattle Womens
             Commission), 43d Leg., 3d Ex. Sess. (Wash. 1974) (on file with Wash. State Archives);
             Loh, supra, at 570 n.l53.

                                                       17
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



With respect to Washington's rape laws, the totality of the relevant evidence

overwhelmingly supports the conclusion that our legislature did not intend to

exclude nonconsent as an element of forcible sexual contact.

      The legislative record contains numerous letters, memoranda, testimonies,

news articles, and other documents detailing the debates and discussions that led to

the 1975 rape law reforms. See infra Parts II.B. 1-4. These documents nowhere
                                                                                           17
indicate any legislative intent to exclude "consent" as an element of rape.

Rather, they reveal the legislature's significant investment in three other reforms:

(1) the repeal of language implying that a victim's physical "resistance" was an

element of rape, (2) the enactment of limits on the admissibility of evidence


       17
           See Materials on Proposed Revisions of the Laws Relating to Sexual Crimes,
S.B. 2198, 44th Leg., 2d Ex. Sess. (Wash. 1975) (on file with Wash. State Archives)
(listing the "Major Issues" underlying reform debates). Indeed, where the concept of
"consent" does appear in the legislative record, it is always treated as a question central to
any rape prosecution. See, e.g., S.B. 2196 and the Committee Amendment to S.B.
2198-Revising the Law on Rape--A Discussion of Section 2, 44th Leg., 2d Ex. Sess.
(Wash. 1975) (on file with Wash. State Archives) ("The bill as originally presented ...
would make the past sexual behavior or reputation of the complainant inadmissible on the
issue of her credibility or on the issue of consent. . . . A consent to intercourse with one
person does not constitute a consent, or even a likelihood of consent to intercourse with
other persons. If the word "consent" means anything, then it implies discretion and
choice-and the right to not consent."); Written testimony of Jackie Griswold, Vice-
President, SWC (1974) (discussing proposed S.B. 3173) (on file with Wash. State
Archives) ("In courtroom practice, much of the victim's past life may be scrutinized in
the attempt to show that she consented to a single, specific act. Such practice so extends
the meaning of the word consent as to make it meaningless."); Seattle Women's
Comm'n, supra note 14, at 5 ("We believe that the issue of consent should be determined
solely from the victim's words and conduct at the time of the charged incident.").

                                             18
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



regarding a victim's prior sexual conduct, and (3) the codification of degrees of

rape.

                 1. The Victim 's "Resistance"

        Before the 1975 reforms, Washington defined rape as "an act of sexual

intercourse with a person not the wife or husband of the perpetrator committed

against the person's will and without the person's consent."                  Former RCW

9.79.010 (1974) (repealed 1975). Sexual intercourse was considered to be "against

the person's will and without the person's consent" if the victim's "resistance

[was] forcibly overcome" or "prevented by fear of immediate and great bodily

harm .... " !d. The pre-reform law thus defined rape in terms of the victim's

"resistance," making an alleged victim's physical reaction a central issue in every

prosecution.

        In many jurisdictions, courts interpreted similar statutes to require evidence

of the victim's strenuous physical resistance, or at least some "excuse" for

nonresistance, in order to sustain a conviction of rape. 18 By contrast, Washington


        18
         See, e.g., Johnson v. State, 118 So. 2d 806, 815 (Fla. App. 1960) ('"resistance or
opposition by mere words is not enough; the resistance must be by acts, and . . .
reasonably proportionate to the strength and opportunities of the woman ... and must be
shown to persist until the offense is consummated"' (quoting 22 RULING CASE LAw § 10,
at 1180 (William M. McKinney ed. 1918))); Magwire v. People, 77 Colo. 149, 154, 235
P. 339 (1925) (quoting Anderson v. State, 82 Miss. 784, 35 So. 202, 202 (1903) ("mere
passive resistance, silent objection, on the part of the assaulted female, is [in]sufficient to

                                              19
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



courts rejected this requirement as early as 1910, finding it to be unrealistic and

impractical:

             While it may be expected in such cases from the nature of the
      crime that the utmost reluctance would be manifested, ... to hold as a
      matter of law that such manifestation and resistance are essential to
      the existence of the crime ... would be going farther than any well-
      considered case in criminal law has hitherto gone. . . . Such a test it
      would be exceedingly difficult, if not impossible, to apply in a given
      case. A complainant may have exerted herself to the uttermost limit
     --of her -strength, -and may-have -eontinued- to do- so till the- crime -was --
       consummated. Still,. a jury, sitting coolly in deliberation upon the
      transaction, could not possibly determine whether or not the limit of
       her strength had been reached. They could never ascertain to any
       degree of certainty what effect the excitement and terror may have
       had upon her physical system.

State v. Pilegge, 61 Wash. 264, 268, 112 P. 263 (1910) (quoting State v. Shields,

45 Conn. 256, 264 (1877)).

       Despite this relatively enlightened case law, the pre-reform statute equated

nonconsent with physical "resistance."           Its literal terms thus permitted forced

sexual penetration where the victim's resistance had been too easily overcome to




justify a jury in convicting of rape"); State v. Morrison, 189 Iowa 1027, 179 N.W. 321,
323 (1920) ("We find no cases where a mere threat, even a threat to kill, unaccompanied
by a demonstration of brutal force or dangerous weapon, is held to be a sufficient putting
in fear to excuse nonresistance."); Mills v. United States, 164 U.S. 644, 648, 17 S. Ct.
210, 41 L. Ed 584 (1897) ("mere nonconsent of a female to intercourse where she is ...
not overcome by numbers or terrified by threats, or in such place and position that
resistance would be useless, does not constitute the crime of rape on the part of the man
who has connection with her").

                                            20
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



                         19
constitute nonconsent.        A court applying such a statute might instruct a jury that

it could not convict on the basis of the complainant's mere reluctance or that the

                                                                           20
complainant must explain an apparent failure of adequate resistance.

       This problem was one of many that motivated the 1975 reforms, and the

legislative history of Washington's rape law reform includes extensive testimony

                                                                                21
on the need to remove "resistance" as an element of the rape crime.                  As one



       19
           Under this statutory regime, many defendants appealed their rape convictions on
the ground that there had been insufficient evidence that the victim resisted; it should be
noted, however, that such appeals were apparently rarely successful. State v. Pitman, 61
Wn.2d 675, 379 P.2d 922 (1963) (no merit in appellant's contention that evidence of
resistance was insufficient as a matter of law, since victim's reason for not resisting was a
question for the jury); State v. Baker, 30 Wn.2d 601, 606-07, 192 P.2d 839 (1948) Uury
justified in finding that victim's resistance was prevented by fear); State v. Meyerkamp,
82 Wash. 607, 609, 144 P. 942 ( 1914) ("The resistance spoken of in the statute is not one
of the elements of the crime. It is evidence of the want of consent which is an element.");
see, e.g., State v. Thomas, 9 Wn. App. 160, 163, 510 P.2d 1137 (1973) ("[r]eluctant
submission does not imply consent, Hazel v. State, 221 Md. 461, 157 A.2d 922 (1960));
nor is the extent of resistance or lack of resistance by the woman other than an item of
evidence to be considered ... along with all other evidence which bears upon willingness
and consent").
        20
           See, e.g., State v. Mertz, 129 Wash. 420, 422, 225 P. 62 (1924) Uury instructed
that if the victim "'yield[ ed] her consent during any part of the act ... there is no such
 opposing will as the law requires to convict on the charge of rape"'); State v. Williams, 85
 Wash. 253, 254, 147 P. 865 (1915) ("the prosecuting witness resisted [the defendant's]
 assault with such force as to show a want of consent upon her part [where] [s]he testified
that she fought him as much as she was able; that she is afflicted with heart trouble,
which prevented further resistance on her part").
        21
           See, e.g., Written testimony of Jackie Griswold, supra note 17 ("Aside from
 such relatively unusual situations as where the victim was of unsound mind, or in a
 stupor, or unconscious of the nature of the act, in the great majority of cases it must be
 shown that a woman's resistance was forcibly overcome or that her resistance was
 prevented by fear of immediate and great bodily harm. We thought that fear of a lesser

                                             21
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



reform advocate put it, "Why should rape victims be required to resist to the extent

that they receive additional injuries when robbery victims are considered clever

when they don't dispute with the robber[?]"          Written Testimony of Jean Marie

Brough at 1, Legislative Coordinator for Seattle NOW, to the S. Judiciary Comm. (Aug.

3, 1974) (on proposed S.B. 3173) (on file with Wash. State Archives).

      Importantly, however, the champions of reform did not view the removal of

the "resistance" element as tantamount to removing the element of nonconsent. On

the contrary, they viewed nonconsent as the essence of the rape crime:

              Rape is a crime because of lack of consent. Rape statutes
       should therefore focus on consent and lack of consent and the amount
       of violence involved. Consent should not be so qualified as to make
       additional injury to the victim a necessity for conviction.

!d. Indeed, even Wallace Loh's law review article on the 1975 reforms, upon

which the Camara court ostensibly relied, rejected the argument that the reforms

had eliminated the prosecution's duty to prove nonconsent:

       Modern statutory and decisional law do not treat force and nonconsent
       as separate formal elements. Indeed, if force ... is not an objective
       indicator of nonconsent, it is unclear how else the subjective state
       would be determined.




degree of bodily harm might very reasonably prevent resistance. So might threats of
future harm, or threats to harm another person, or threats to harm the financial situation
or personal relationships of the victim.").

                                           22
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



Loh, supra, at 552 n.43. 22 Loh's article described the reform statute's "focus ...

on the culpability of the actor" as having important "symbolic value," but not as

changing the fact that "nonconsent is the basic substantive element of the crime."

Jd. at 557.

                 2. The Victim's Prior Sexual Conduct

       Rather than seeking to remove nonconsent altogether as an element of the

crime, rape law reformers were primarily concerned with limiting the type of

evidence admissible on that element. 23          Under traditional common law rape

statutes, an accuser's sexual history was relevant to the likelihood that she

consented to sexual intercourse with the accused. 24           This evidentiary regime

reflected two assumptions: first, that evidence of consent on prior occasions was


       22
          See also Loh, supra, at 550-52 ("The new Washington rape law, like other
reform legislation . . . focuses more on the actor's use or threat of force rather than the
victim's conduct as the external criterion of nonconsent . . . [but t]he 'common
denominator' to the three degrees of rape is lack of consent. . . . Only in rape 3 is
nonconsent expressly stated as an element of the crime, but absent aggravating factors
and forcible compulsion, it is unclear what other objective evidence based upon 'the
victim's words or conduct' the state can present as proof." (emphasis added) (footnote
omitted) (quoting former RCW 9.79.190(1)(a)).
       23
          Fact Sheet-Bill to Revise Present Rape Law at 1, S.B. 3173, 43d Leg., 3d Ex.
Sess. (Wash. 1974) (on file with Wash. State Archives).
       24
          Stacy Futter & Walter R. Mebane, Jr., The Effects of Rape Law Reform on Rape
Case Processing, 16 BERKELEY WOMEN'S L.J. 72, 75 (2001) ("During trial, a woman's
previous sexual history and encounters with the accused and third parties were used in
court to determine whether the victim had a 'tendency to consent."' (citing SUSAN
BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 378 (1975)).

                                            23
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



probative of a general propensity to willingly engage in sexual contact and second,
                                                        5
that an unchaste woman was not a credible witness?

      By the time our legislature undertook the 1975 reforms, Washington case

law had substantially limited the admissibility of an accuser's "sexual misconduct"

or "chastity reputation" in a rape trial. See State v. Holcomb, 73 Wash. 652, 132 P.

416 (1913); see also State v. Geer, 13 Wn. App. 71, 74, 533 P.2d 389 (1975) ("There is

ample a11;thority in Washington to support the proposition that specific acts of

sexual misconduct on the part of the prosecutrix are inadmissible in rape cases as

such evidence bears on neither the question of consent or credibility." (citing State

v. Allen, 66 Wn.2d 641, 404 P.2d 18 (1965))). Nevertheless, reformers noted that

                                                        26
lower courts did not always observe these limits             and that the prospect of a

"humiliating and dehumanizing" trial therefore dissuaded many victims from

pressing charges. 27 They argued that evidence of a victim's prior sexual behavior

should be presumed inadmissible, so the prosecution need not move to exclude it.


       25
            Fact Sheet, supra note 23.
       26
            Fleck, supra note 14, at 3 ("Washington case law on the appellate and supreme
court level reflects a favorable attitude to the victim's situation. . . . Although most
judges follow case law, some do not and a prosecutor cannot take appeal from a 'not
guilty' verdict on the basis of reversible error."); see also App.: Summary of Coriflicting
Rulings on the Admissibility of Evidence of the Victim's Sexual Misconduct To Affect
Credibility or To Evidence Consent, S.B. 2196, 44th Leg., 2d Ex. Sess. (Wash. 1975) (on
file with Wash. State Archives).
        27
           Written testimony of Jackie Griswold, supra note 17.

                                             24
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



Deborah Fleck, Intern for House Judiciary Comm., Is There a Need for Revision of

the Washington State Rape Law? (1974) (on file with Wash. State Archives).

      The 1975 law addressed these problems. That law made "evidence of the

victim's past sexual behavior" inadmissible on the issue of credibility. LAWS OF

1975, 1st Ex. Sess., ch. 14, § 2. On the issue of consent, it made the victim's

sexual history inadmissible unless (1) "the perpetrator and the victim have engaged

in sexual intercourse with each other in the past, and . . . the past behavior is

material to the issue of consent" or (2) the judge determines at a closed hearing that

the evidence "is relevant to the issue of the victim's consent; is not inadmissible

because its probative value is substantially outweighed by the probability that its

admission will create a substantial danger of undue prejudice; and that its

exclusion would result in denial of substantial justice to the defendant." !d. Since

1975, the legislature has expanded these protections.          Under current RCW

9A.44.020(3)(a) and (b), a defendant offering evidence of the accuser's sexual

history must file a written pretrial motion, accompanied by affidavit. If the court

finds that offer of proof sufficient, it must hold a hearing to determine whether any

of the proffered evidence may be introduced at trial. RCW 9A.44.020(3)(c), (d).

                 3. The Codification ofDegrees ofRape




                                           25
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



      The most significant substantive change accomplished in the 1975 reforms

was probably the division of rape into three degrees.             Under the old law, a

defendant charged with rape faced a minimum sentence of five years'

imprisonment.     LAWS OF    1973, 1st Ex. Sess., ch. 154, § 122. The pre-reform

statute did not distinguish between the rape crime's "degrees of seriousness," 28 and

reform advocates believed that this led juries to exercise their nullification power

where a crime was less than the most brutal attack. 29           Prosecutors apparently

shared this belief and were inclined to charge or accept pleas to a lesser offense,

such as assault. 30




       28
           Id. at 2.
       29
           See Fleck, supra note 14, at 15 ("One element all four proposed revisions have
in common is the division of rape into degrees with graduated sentences, on the theory
that convictions may be achieved for less aggravated rapes which might otherwise be
acquittals."); Written testimony of Jean Marie Brough, supra note 13, at 2 ("convictions
would be more reasonably gained if there was a general lowering of penalties to fit the
severity of the crime"); Seattle Women's Comm'n, supra note 14, at 6 ("we recommend
that there be degrees of rape which will take into account the variety of elements which
may enter into the crime, affecting its degree of seriousness, in order to avoid some of the
most glaring defects of the plea bargaining system so that rape can be reduced to a lesser
degree of what it actually is-rape-rather than to euphemism").
        30
            Loh, supra, at 558; see also Ron Clark, King County Prosecutor's Office,
Testimony at Senate Hearing of the Rape Statute, S.B. 2196, 44th Leg., 2d Ex. Sess.
(Wash. 1975) (Jan. 21, 1975) (on file with Wash. State Archives) ("third degree rape
[which is in] the Women's Commission bill and not the Bar bill would be preferable in
that it would identify a sexual intrusion which might be classified under the Bar bill ...
as assault").


                                            26
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



           The reform statute addressed this problem by codifying three degrees of

rape. 31        Under the current statute, first degree rape is characterized by the

commission of a simultaneous burglary or kidnapping, the use of a weapon, or the

infliction of serious physical injury/ 2 and is punishable by a minimum of three

years' incarceration. 33 Rape in the second degree encompasses sexual intercourse

by forcible compulsion "under circumstances not constituting rape in the first

degree," 34 sexual intercourse with a victim who is physically helpless or mentally

incapacitated, 35 and sexual intercourse characterized by the victim's vulnerability

and dependence on the perpetrator for certain care or services. 36 Rape in the third

degree encompasses sexual intercourse "under circumstances not constituting rape

in the first or second degrees," where the victim clearly expressed a lack of consent

or the perpetrator made a "threat of substantial unlawful harm" to the victim's

"property rights." RCW 9A.44.060(1 ).

                    4. Michigan 's Reform Statute

           In developing the 1975 rape law reforms, Washington's legislature relied

heavily on Michigan's example. Loh, supra, at 552-53. Michigan was one of the
           31
                LAWS OF 1975, 1st Ex. Sess., ch. 14, § 4, ch. 247 § 2.
           32
              RCW 9A.44.040(1 ).
           33
              RCW 9A.44.045.
           34
              RCW 9A.44.050(1)(a).
           35
              RCW 9A.44.050(1)(b).
           36
              RCW 9A.44.050(c)-(e).


                                                   27
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



first states to reform its rape laws, and its victim protections are considered among

the strongest in the nation? 7 The reform statute Michigan enacted in 1974, which

replaced the term "rape" with the term "criminal sexual conduct," 38 eliminated

corroboration and resistance requirements and included a highly restrictive rape

shield law? 9 Michigan's reform statute also omits any reference to the alleged

victim's "consent" in its basic definitions of criminal sexual conduct. 40

      In spite of this omission, Michigan courts have not relieved the prosecution

of the burden of proving nonconsent. 41 Rather, they have reasoned that consent




       37
          David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice System, 87 J.
CRIM. L. & CRIMINOLOGY 1194, 1225 (1997); Julie Homey & Cassia Spohn, Rape Law
Reform and Instrumental Change in Six Urban Jurisdictions, 25 LAW & Soc'y REV. 117,
121-23 (1991); Harriett R. Galvin, Shielding Rape Victims in the State and Federal
Courts: A Proposal for the Second Decade, 70 MINN. L. REV. 763, 765 nJ (1987).
       38
          MICH. COMP. LAWS§§ 750.520a-750.5201.
       39
          Bryden, supra note 37, at 1225.
       40
           In Michigan's Criminal Sexual Conduct statute, references to the alleged
victim's "consent" appear only in the provision criminalizing sexual contact between a
health care professional and his or her patient. The victim's consent is expressly
disallowed as a defense where "[t]he actor is a mental health professional and the sexual
contact occurs within 2 years after the period in which the victim is his or her client or
patient and not his or her spouse." MICH. COMP. LAWS§ 750.520e(l)(e).
       41
          See, e.g., People v. Bayer, 279 Mich. App. 49, 67, 756 N.W.2d 242 ("'Although
the statute is silent on the defense of consent, we believe it impliedly comprehends that a
willing, noncoerced act of sexual intimacy or intercourse between persons of sufficient
age who are neither "mentally defective", . . . "mentally incapacitated", . . . nor
"physically helpless", ... is not criminal sexual conduct."' (quoting People v. Khan, 80
Mich. App. 605, 619 n.5, 264 N.W.2d 360 (1978))),judgment vacated in part on other
grounds, 482 Mich. 100, 756 N.W.2d 77 (2008).

                                            28
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



                                                     42
"negate[ s] the elements of force or coercion"            and that the prosecution must

therefore disprove consent beyond a reasonable doubt wherever the defendant

                                                                   43
produces evidence sufficient to put the issue in controversy.           To the extent that

Michigan's reform statute appears to remove "nonconsent" as an element of

criminal sexual conduct, courts have recognized that this is only because it is

"redundant" to require the prosecution to prove nonconsent where it is clearly

implied by the use of force (i.e., the perpetrator's use of a weapon or commission

                                                44
of the rape during a burglary or kidnapping).


       42
          People v. Waltonen, 272 Mich. App. 678, 689, 728 N.W.2d 881 (2006) (citing
People v. Stull, 127 Mich. App. 14, 19-21, 338 N.W.2d 403 (1983) ("In the context of the
[Criminal Sexual Conduct] statutes, consent can be utilized as a defense to negate the
elements of force or coercion.")).
       43
          People v. Thompson, 117 Mich. App. 522, 528-29, 324 N.W.2d 22 (1982). The
only exception to this rule occurs where force or coercion is not an element of the crime
charged, and the statute does not otherwise expressly provide for the defense of consent.
See, e.g., Waltonen, 272 Mich. App. at 686-87 & n.2, 689 (rejecting consent defense in
the context of statute criminalizing "sexual penetration [that] occurs under circumstances
involving the commission of any other felony" (quoting People v. Pettaway, 94 Mich.
App. 812, 815, 290 N.W.2d 77 (1980))). Waltonen criticized Thompson's reasoning, but
it did so only because force and coercion are not elements of crime with which the
defendant in Thompson was charged. Waltonen, 272 Mich. App. at 688-89. Waltonen
did not question Thompson's assertion that, where force or coercion is an element of the
charged offense, the prosecution bears the burden of disproving a colorable claim of
consent. Id.
       44
          The authors of Michigan's reform statute recognized that it was "redundant" to
require proof of nonconsent where it was clearly implied by the facts of the alleged
crime. Khan, 80 Mich. App. at 619 n.5 ("'If actual force or threat of force sufficient to
meet the "force" requirement can be shown, it is redundant to also require a separate
showing of "nonconsent" as part of the case in chief. . . . This is the approach of the
reform legislation."' (quoting Virginia Nordby, Legal Effects of Proposed Rape Reform

                                           29
           State v. Lynch (Jeffrey Thomas), No. 87882-0
           (Gordon McCloud, J., Concurrence)



                                        5. Conclusion

                 The Camara court correctly noted that Washington's postreform rape laws

           expressly focus on the perpetrator's rather than the victim's conduct. However,

           that court incorrectly inferred that this shift in focus had eliminated consent as an

           element of sexual intercourse or contact by "forcible compulsion." Camara, 113

           Wn.2d at 640. There is no support for this inference in the legislative history. On
--~~---------------      ~--------   - - - - - - - - - - - ------ -   ----~-------~---~~---~--   -   --   ---




           the contrary, the history of rape law reform in Washington indicates that reformers

           viewed nonconsent as the gravamen of the rape crime.                                                 The changes these

           reformers sought and achieved limited the evidence admissible on the question of

           consent, but did not lessen the prosecution's duty to prove nonconsent beyond a

           reasonable doubt.                         Indeed, because consent negates the element of forcible

           compulsion, they could not have done so without violating the due process

           guaranties of the Fourteenth Amendment.

                  III.          Camara and Gregory are Incorrect and Harmful

                  Under the doctrine of stare decisis, this court will overturn precedent only if

           it is incorrect and harmful. City of Federal Way v. Koenig, 167 Wn.2d 341, 343,

           217 P.3d 1172 (2009). For the reasons outlined above, this court's decisions in

           Bills: S.B. 1207 and HB. 5802, submitted to the H. Judiciary Comm. on Apr. 23, 1974)));
           see also People v. Jansson, 116 Mich. App. 674, 683, 323 N.W.2d 508 (1982) ("to prove
           force or coercion as those terms are defined in the statute is to establish that the victim
           did not consent").

                                                                                       30
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)



Camara and Gregory are incorrect. They are also harmful, 45 as they continue to be

relied upon by lower courts to the detriment of defendants' due process rights. In

the past decade, at least nine appellate decisions have cited Camara or Gregory for

the principle that a defendant charged with sexual intercourse or contact by

forcible compulsion may be required to prove by a preponderance that the accuser

consented. 46 This requirement is tantamount to a presumption of guilt.

       This case presents an opportunity to correct the errors made in Camara and

Gregory. I would take that opportunity and address the defendant's meritorious

due process argument.




       45
          This court has overturned precedent as "harmful" where it "threatens" a
fundamental principle of constitutional law. See State v. Barber, 170 Wn.2d 854, 871-72,
248 P.3d 494 (2011) (overturning case law that "threatens separation of powers").
       46
          State v. Williams, noted at 175 Wn. App. 1003 (2013); State v. W.R., noted at
171 Wn. App. 1019 (2012); State v. Lynch, noted at 170 Wn. App. 1001; State v.
Mohamed, noted at 159 Wn. App. 1028 (2011); State v. Buzzell, 148 Wn. App. 592, 200
P.3d 287 (2009); State v. Whitt, noted at 139 Wn. App. 1082 (2007); State v. Matt, noted
at 138 Wn. App. 1025 (2007); State v. Speight, noted at 136 Wn. App. 1006 (2006); State
v. Bolar, 118 Wn. App. 490, 78 P.3d 1012 (2003).

                                           31
State v. Lynch (Jeffrey Thomas), No. 87882-0
(Gordon McCloud, J., Concurrence)




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