Argued March 20, 2014
Appeal from King County Superior Court 11-8-00082-8 Honorable Gregory P Canova.
Gregory C. Link, for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Deborah A. Dwyer, Deputy, for respondent.
Travis Stearns, Suzanne L. Elliott, and David B. Zuckerman on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
Travis Stearns and Suzanne L. Elliott on behalf of Washington Defender Association, amicus curiae.
Brian N. Wasankari on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.
Rebecca J. Roe and Emily Cordo on behalf of Washington Coalition of Sexual Assault Programs, King County Sexual Assault Resource Center, and Legal Voice and Sexual Violence Law Center, amici curiae.
AUTHOR: Justice Debra L. Stephens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Mary E. Fairhurst, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud, Teresa C. Kulik, Justice Pro Tem. AUTHOR: Justice Susan Owens. WE CONCUR: Justice Charles W. Johnson, Justice Steven C. Gonzá lez.
[181 Wn.2d 759] ¶ 1 This case asks us to reconsider whether it violates due process to assign a defendant the burden of proving consent as a defense to a charge of rape by forcible compulsion. We held in State v. Camara, 113 Wn.2d 631, 639-40, 781 P.2d 483 (1989), and reaffirmed in State v. Gregory, 158 Wn.2d 759, 801-04, 147 P.3d 1201 (2006), that notwithstanding the " conceptual overlap" between [181 Wn.2d 760] consent and forcible compulsion, the defendant may be tasked with proving consent by a preponderance of the evidence. Recently, we were asked to consider this issue a third time but we declined to reach it, instead resolving the case on Sixth Amendment grounds. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013); U.S. Const. amend. VI. Three justices would have reached the issue and overruled Camara and Gregory. Id. at 518 (Gordon McCloud, J., concurring). Today, we embrace that approach and reject the due process precedent set in Camara and Gregory as both incorrect and harmful. We reverse W.R.'s conviction and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
¶ 2 Following a bench trial, the juvenile court found W.R. committed rape in the second degree under RCW 9A.44.050(1)(a). The event in question was a sexual encounter between W.R. and J.F. that occurred on January 2, 2011, while J.F. was visiting her aunt,
who resided with W.R. and his sister. Both W.R. and J.F. were minors at the time.
¶ 3 Throughout the police investigation, W.R. consistently denied ever having sexual intercourse with J.F. Shortly before trial, he admitted that they had engaged in sexual intercourse on January 2, 2011, but defended it as consensual. Tr. of Adjudicatory Hr'g (TAH) (June 16, 2011) at 155-62. To support his defense, W.R. testified that J.F. had a crush on him and that the two had engaged in sexual intercourse on a prior occasion in July 2010. Id. at 146. J.F. initially denied ever having sex with W.R. before the January incident. TAH (June 15, 2011 Morning Session) at 78-79. At trial, however, she admitted to having sex with W.R. on both occasions but insisted she did not consent to either. Id. at 81-84. Although W.R.'s sister did not witness the alleged rape, she was in the vicinity when it occurred and testified that J.F. had a crush on W.R. TAH (June 16, 2011) at 72, 86-87.
[181 Wn.2d 761] ¶ 4 At the close of the bench trial, Judge Gregory P. Canova observed that " the key issue ... is credibility." TAH (June 21, 2011) at 110. The court did not find W.R.'s and his sister's testimony to be credible, noting W.R.'s evasive responses to questions and inconsistent story, id. at 121-24, and his sister's uncorroborated story and cavalier demeanor at trial, id. at 111-16. The court found J.F.'s testimony to be credible, id. at 116-21, and concluded W.R. committed rape in the second degree by forcible compulsion. The court explained that the State had proved rape in the second degree beyond a reasonable doubt and that W.R. had failed to prove the defense of consent by a preponderance of the evidence. Id. at 124; Clerk's Papers (CP) at 50.
¶ 5 W.R. appealed, arguing the juvenile court erred in allocating to him the burden of proving by a preponderance of the evidence that the act was consensual. W.R. conceded the allocation was consistent with our prior decisions in Camara and Gregory but argued these decisions were based on a flawed reading of United States Supreme Court precedent and violated his due process rights. Division One of the Court of Appeals affirmed in a brief, unpublished per curiam opinion, noting it was bound by our decisions in Camara and Gregory. State v. W.R., noted at 171 Wn.App. 1019 (2012). We granted review. State v. W.R., 179 Wn.2d 1001, 315 P.3d 531 (2013).
¶ 6 When the State charges the defendant under a rape statute that includes " forcible compulsion" as a necessary element of the crime, does due process forbid requiring a criminal defendant to prove consent ...