Defendant Not Required to Prove Consent Doesn’t Mean that the State Must Prove It

State v. Knapp, No. 35901-8 (December 10, 2019), Washington Court of Appeals, Division Three.

Brief: The defendant’s conviction for second degree rape by forcible compulsion was proper under RCW 9A.44.050(1)(a) because there was no error in refusing to give his proposed instruction on consent since the trial court correctly instructed the jury that evidence of consent could be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse. The defendant’s proposed instruction was an incorrect statement of the law because prior caselaw did not hold that the burden to prove an absence of consent shifted to the State; instead, it held that the burden to prove consent could not be placed on the defendant.

Translation: The Defendant is not required to prove consent. However, this is not the same thing as saying that the State is required to prove consent. Therefore, the court’s refusal to instruct the jury that the State must prove consent was proper.

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