WPIC 18.25 Consent—First or Second Degree Rape or Indecent Liberties—Defense

Do not use prior versions of this instruction. See discussion in Comment.

Do not use WPIC 45.04 (Consent—Definition) with this instruction.

Use this instruction with WPIC 40.02 (Rape—First Degree—Elements) if the evidence warrants such an instruction.

Use this instruction with WPIC 41.02 (Rape—Second Degree—Elements) only if it is alleged that the sexual intercourse occurred by forcible compulsion and the evidence warrants such an instruction.

Use this instruction with WPIC 49.02 (Indecent Liberties—Elements) only if it is alleged that the sexual contact occurred by forcible compulsion and the evidence warrants such an instruction.

Use the term “sexual intercourse” with a second degree rape defense, and the term “sexual contact” with an indecent liberties charge.

In light of the Supreme Court's decision in State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014), the former version of this instruction has been withdrawn and it should not be used.

The defense of consent negates the element of forcible compulsion. State v. W.R., Jr., 181 Wn.2d at 765. Thus, RCW 9A.44.010(7), which places the burden of proving consent upon the defendant, is unconstitutional. In so holding, the court explicitly overruled two earlier cases, State v. Camara, 113 Wn.2d 631, 781 P.2d 483 (1989), and State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006), which had held to the contrary. “The State bears the burden of disproving a negating defense beyond a reasonable doubt.” State v. Wiebe, 195 Wn.App. 252, 256–57, 377 P.3d 290 (2016).

Even if the jury does not believe there was consent, it may use evidence of consent to find the prosecution has not met its burden of proving forcible compulsion. State v. Ortiz-Triana, 193 Wn.App. 769, 782, 373 P.3d 335 (2016). The instructions should clarify how the jury is to assess evidence of consent and its relationship to forcible compulsion. State v. Ortiz-Triana, 193 Wn.App. at 782.

In State v. Knapp, 11 Wn.App.2d 375, 453 P.3d 1006 (2019), review granted, 461 P.3d 497 (2020), the Court of Appeals ruled the trial court did not err in refusing to separately instruct on the burden of proof regarding consent. The proposed instruction in Knapp modified the definition of consent to add that the defendant has no burden to prove the absence of consent and the State bears the burden of proving the lack of consent beyond a reasonable doubt. The jury in Knapp was accurately instructed that the State bore the burden of proving forcible compulsion.

Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).