On October 30th the Washington Supreme Court held in a 6 — 3 decision that victims of sexual assault have the burden of proving lack of consent to sexual activity. This reverses existing case law in this area, which previously held that defendants had the burden of proving the victim consented as an affirmative defense. The Washington Coalition of Sexual Assault Programs (WCSAP), in conjunction with Legal Voice, the King County Sexual Assault Resource Center, and the Sexual Violence Law Center, submitted an Amicus Curie brief in this case, urging the court to maintain focus on the wrongdoing of the defendant rather than scrutinizing the victim’s response.
WCSAP is disappointed in this ruling, which will make an already adversarial legal system that re-victimizes survivors and fails to hold offenders accountable, even more upsetting. There is no standard response to being victimized by sexual violence. In addition, many victims have a “freeze” response rather than “fight or flight,” which means there may be less overt indications of lack of consent (e.g. struggle, saying “no,” running away). This will make it very difficult to prove lack of consent and placing this burden on the victim is a great miscarriage of justice. Sexual assault is a vastly underreported crime and this ruling will have a chilling effect on future victims’ participation in the system. It will also have a significant impact on the sexual assault advocates whose job it is to support and encourage victims through the already challenging system. WCSAP stands with the victims of sexual assault who will have to carry this additional weight, with communities in our state that will be less safe as a result of this ruling, and with our membership of advocates whose jobs just got a lot harder.