Consent: Unconstitutional Burden
Shift to Defendant in Rape Case
A big tip-of-the-hat to appellate counsel in State v. Ortiz-Triana, 193 Wn. App. 769 (2016). The defendant was found guilty at trial of rape in the second degree (“Rape 2”), and appealed his conviction, arguing trial court error in giving the State’s “consent” jury instruction and refusing to give a “clarifying” defense jury instruction. The defense jury instruction provided clarification about the defense of consent to sexual contact and the State’s burden to prove “forcible compulsion” (that is, use of force that overcomes actual resistance). The Washington Court of Appeals affirmed the defendant’s conviction in 2012.
But the defendant and his lawyers did not give up, and appeal was taken and petition for review filed to the Washington State Supreme Court. In 2015, that Court remanded Mr. Ortiz-Triana’s case back to the court of appeals, based on its related holding in State v. W.R., 181 Wn.2d 757 (2014). The W.R. Court held that because consent negates the criminal element of forcible compulsion, an element of Rape 2 that the State must prove, shifting the burden to the defendant to prove consent is a constitutional due process violation. Instead of reversing the conviction, the Washington Supreme Court instructed the Court of Appeals to review its 2012 holding.
Back to the Court of Appeals: the State conceded on the remand that the original jury instruction violated due process by requiring the defendant to prove consent by a preponderance of evidence. However, the State claimed the defendant’s lawyer invited the error, or alternatively, that the error was harmless.
Simply put, the “invited error rule” is that a party will not get the benefit of an error which “he induced the trial court to commit.” State v. McNeil, 161Wash. 221, 223 (1931).
The State cleverly argued invited error because the defendant’s proposed instruction contained the same erroneous burden of proof language that the State’s proposed instruction contained. However, the defense clarification instruction was tendered to clarify that the jury could still consider evidence of consent in determining whether the State proved forcible compulsion – a necessary element for Rape 2 – beyond a reasonable double.
The Court of Appeals, on the second go round, properly declined to apply invited error because the defendant’s lawyer had also proposed the clarification instruction that attempted to remedy or mitigate the error in the accepted instruction. The trial court had not accepted the defense clarifying instruction, even though the State had acknowledged it was “an accurate reflection of the law.” The trial court accepted the State’s argument that the clarifying instruction was unnecessary, and held the instruction was “confusing”. This is ironic, as the argument of the defendant’s trial attorney for the clarifying instruction was it would help clear the jury’s confusion that consent could be considered when deciding whether the State had met its burden of proof regarding forcible compulsion. The trial attorney definitely helped his client by making a good oral record when arguing for the clarifying instruction.
The Court of Appeals properly recognized that the defendant’s trial lawyer could not have done anything to prevent the trial court from using the State’s proposed consent instruction, as it was a proper statement of the law at that point in time. State v. Ortiz-Triana, at 780. The erroneous burden of proof in the defense consent instruction was placed there because the defense was constrained by the current case law, and so the Court of Appeals was not constrained by the invited error doctrine. The Court could review of the defendant’s claim of a constitutional violation of due process.
The Appellate Court took less time and space when reviewing the State’s second argument, which was that any trial court error was harmless, since “reversal is ordinarily the proper remedy” for a constitutional violation of due process. State v. Ortiz-Tiana, at 781. In other words, it was not harmless.
The W.R. case was helpful in determining there was a constitutional violation. Defendant W.R., as did Mr. Ortiz-Triana, initially denied having any sexual contact with the alleged victim. Both later testified at trial that sexual intercourse occurred, but was consensual. The State argued W.R.’s guilt therefore rested on credibility determinations, but the Appellate Court held that because the court and the parties were acting under a misunderstanding of law, the State could not demonstrate beyond a reasonable doubt that consideration of the correct burden of proof would not have swayed the decision of the fact-finders. The errant instruction “provided no guidance” to the jury as fact-finders.
Appellate counsel’s perseverance here was rewarded: nearly six years later, Mr. Ortiz-Triana’s conviction was reversed. His case was remanded to the trial court for a new trial, with clear guidance that Mr. Ortiz-Triana did not have the evidentiary burden of proving consent in the context of a case of forcible compulsion.
I expect trial courts will closely examine situations where a defendant has an affirmative obligation involving the burden of proof. When the affirmative defense negates an element of the crime, this is a constitutional violation of due process.
On its second try, the Court of Appeals reached the correct outcome on the law for Mr. Ortiz-Triana.
If you have a criminal matter you would like to consult with a lawyer about, please contact Jan Olson at Ellis, Li & McKinstry, PLLC at (206) 682-0565.