WA Supreme Court: Consent Defense Improperly Placed on Defendants, Gregory and Camara Nixed
Quite the shakeup in the criminal justice world. This case involves an alleged rape, involving to minors. The state of the law at the time was that the defense of consents needed to be proved by the defendant using a preponderance, otherwise known as more likely than not, standard. However, under due process law, where the defense necessarily negates an element of the crime, then putting that burden on the defendant is a violation of due process.
Here, if the other party consented, that negates the element of forcible compulsion. Thus, all the defendant has to do is create a reasonable doubt as to whether there was consent, and it then becomes the burden of the prosecution to show beyond a reasonable doubt that there was no consent as an element of the crime.
Now, I don’t practice criminal law, so I’m not quite sure the impact this will have. If anyone would care to weigh in, be it in the comments section, or in a guest post, please feel free to do so.