Respondent Alfred R. Camara III was convicted in King County of second degree rape. Citing instructional error, the Court of Appeals reversed the conviction and remanded for a new trial. State v. Camara, noted at 52 Wn.App. 1018 (1988). We granted the State's
Camara met T.D. at a gay bar in Seattle shortly after midnight on August 14, 1985. At about 2 a.m., the pair decided to go to Camara's apartment to have drinks. T.D. testified that he and Camara "also planned to be sexual with each other."
According to T.D., he and Camara "agreed there would be no intercourse and engage in some oral activity, but mostly kissing and hugging and explicitly stated there was going to be no anal intercourse." On direct examination by the State, T.D. explained why he had suggested the limitation against anal intercourse: "I didn't want to engage in anal intercourse. It is unsafe, and I don't find it pleasurable."
T.D. testified that, notwithstanding their prior agreement, Camara forced him to engage in anal intercourse. According to T.D., the pair commenced consensual sexual activities in Camara's bedroom, starting with kissing and then "turn[ing] into what you call a 69 position where we could each perform on each other." When Camara was unable to climax, T.D. asserted, he asked T.D. to lie on his stomach "so that he could get on my back and like rub against my back." From that position, T.D. said, Camara slid down "so that his penis was probing at my rectum." T.D. said he protested, "I don't want to do that", and yelled outside the room to Camara's roommate for help, but Camara forcibly persisted, shoving his penis into T.D.'s anus, grabbing his scrotum, biting his ear, and beating him in the face. According to T.D., Camara told him, "If you don't shut up, I am going to kill you. You got to take this. I know you want it. You got to take it." T.D. testified that Camara physically abused and threatened him for about 20 minutes, warning that "he would kill me if I told the cops" before letting T.D. leave the apartment.
The trial court charged the jury as follows:
Additional instructions defined "forcible compulsion" and "consent":
Camara proposed no additional instructions relating to the charge of second degree rape. His attorney did, however, note an exception to instruction 9, the consent instruction. Counsel argued: "[T]his restriction limits and requires that the defense has some burden of proving its defense, and what is not forcible compulsion has to be consent, that we have to somehow be proving consent if we are alleging there is no forcible compulsion."
The jury returned a verdict of guilty and the Court of Appeals reversed. As grounds for reversal, the court cited the trial court's failure to give a "specific burden of proof instruction" on the issue of consent. In the absence of such an instruction, the court held, a reasonable juror might not have understood that the State bore the burden of proving T.D.'s nonconsent to intercourse with Camara; jurors "may have believed that the defendant bore at least some burden of proof on this issue." The Court of Appeals found error also in the trial court's refusal to permit Camara an opportunity to cross-examine T.D. concerning his sexual history. T.D. had "opened the door" to such cross examination by testifying on direct examination that he did not find anal intercourse pleasurable, the court held. The court did not decide whether this error was harmless, however, noting that reversal of the conviction was necessary in any event because of the instructional error.
We disagree with the Court of Appeals in both of its findings of error and reinstate the judgment.
The 1909 criminal code (as amended in 1973) described rape as
RCW 9.79.010 (1974). The law was well settled under this statute that the State bore the burden of proving an alleged rape victim's lack of consent. State v. Chambers, 50 Wn.2d 139, 140, 309 P.2d 1055, 62 A.L.R.2d 1080 (1957); State v. Thomas, 9 Wn.App. 160, 510 P.2d 1137, review denied, 82 Wn.2d 1012 (1973).
When the criminal law was recodified in 1975, the concept of nonconsent was replaced with that of forcible compulsion. Both first and second degree rape are defined as "sexual intercourse... [b]y forcible compulsion".
Former RCW 9A.44.010(5).
Though the rape statutes no longer expressly mention nonconsent as an element of rape, we believe consent remains a valid defense to a rape charge, for several reasons. First, nonconsent traditionally has been the essence of the crime of rape. See Loh, The Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical Study, 55 Wash. L. Rev. 543, 548, 550-52 (1980); see also S.
A more difficult question is upon whom the burden of proving the defense of consent lies. In support of its conclusion that this burden rests with the prosecution, as it did under the 1909 rape statute, the Court of Appeals cites State v. Chambers, supra, State v. Thomas, supra, and State v. Kalamarski, 27 Wn.App. 787, 620 P.2d 1017 (1980). None is relevant to the question presented. Chambers and Thomas arose under the old statute and thus say nothing about how the new statutes apply. Kalamarski, the more recent case, involved a conviction for third degree rape and did not address the second degree rape statute under which Camara was convicted.
A 2-part test we have applied in previous cases seeks to capture these two dimensions. The hypothesis this test addresses is whether the burden of proof for a defense should be assigned to the State:
(Citations omitted.) State v. McCullum, 98 Wn.2d 484, 490, 656 P.2d 1064 (1983) (quoting Patterson v. New York, 432 U.S. 197, 210, 53 L.Ed.2d 281, 97 S.Ct. 2319 (1977)); see also State v. Acosta, 101 Wn.2d 612, 615-16, 683 P.2d 1069 (1984); State v. Box, 109 Wn.2d 320, 327, 745 P.2d 23 (1987). When either part of this test is met, we have held the State bears the burden of proving the absence of defense that is in issue. See McCullum (State bears burden of disproving self-defense in murder case); Acosta (State bears burden of disproving self-defense in assault case); Box (defendant bears burden of proof on defense of insanity).
Loh, 55 Wash. L. Rev. at 557; see also Comment, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo. Wash. L. Rev. 399 (1988).
Turning next to the constitutional part of the burden-of-proof analysis, in prior cases we have inquired whether or not an element of the defense "negates" an element of the crime charged. For example, noting that the "lawfulness" element of self-defense negates the intent element of murder, the knowledge element of assault, and the recklessness element of manslaughter, we have held that the State bears the burden of disproving self-defense in murder, assault and manslaughter cases. State v. McCullum, supra at 494-96; State v. Acosta, supra at 616-19; State v. Hanton, 94 Wn.2d 129, 133, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980). Applying this same "negates" analysis in State v. Hicks, 102 Wn.2d 182, 187, 683 P.2d 186 (1984), we held that the prosecution must disprove the defense of good faith claim of title in a robbery case because that defense negates intent.
In light of a recent decision by the United States Supreme Court, we have substantial doubt about the correctness of this "negates" analysis and thus decline to apply it in this case. In Martin v. Ohio, 480 U.S. 228, 230, 94 L.Ed.2d 267, 107 S.Ct. 1098 (1987), the Supreme Court upheld an Ohio law assigning the burden of proving self-defense to the defendant in the context of a prosecution for aggravated murder (defined as "`purposely, and with prior calculation and design, caus[ing] the death of another'"). Acknowledging an overlap between self-defense and the
Following Martin, it appears that assignment of the burden of proof on a defense to the defendant is not precluded by the fact that the defense "negates" an element of a crime. Thus, while there is a conceptual overlap between the consent defense to rape and the rape crime's element of forcible compulsion, we cannot hold that for that reason alone the burden of proof on consent must rest with the State. Rather, we now hold that that burden lies, as we understand the Legislature to have intended, with the defendant.
This does not end our analysis, however. We also must ensure that the instructions given adequately informed the jury of the State's unalterable burden of proving beyond a reasonable doubt every element of the crime charged. See Martin, at 233-34. We have no difficulty in concluding that they did. The "to convict" instruction quoted above specifically informed the jury of the State's burden of proof with respect to the elements of second degree rape. A separate instruction more generally described the State's burden and the presumption of the defendant's innocence. Camara received his procedural due.
We turn next to the asserted error in the trial court's refusal to permit cross examination of T.D. on the subject of his sexual history. On direct examination, T.D. testified that he had not wanted to engage in anal intercourse with Camara. "It is unsafe, and I don't find it pleasurable", T.D. said. On cross examination, Camara's counsel asked T.D. to explain this comment:
With the jury absent, Camara's counsel made an offer of proof that T.D. had engaged in anal intercourse more than the one time with his lover that his testimony acknowledged. In light of this, counsel requested opportunity to cross-examine T.D. on his past experiences with anal intercourse. Relying in part on a pretrial ruling precluding inquiry into T.D.'s past sexual experiences, the trial court rejected Camara's request.
Camara contends that by limiting his inquiry into T.D.'s sexual past, the trial court violated his constitutional right to cross-examine adverse witnesses. The Court of Appeals accepted the substance of Camara's argument, but based its ruling on RCW 9A.44.020(4) instead of on the constitutional ground.
Our reasons for rejecting Camara's claimed right to cross-examine T.D. on the latter's sexual past are much the same as those we gave in rejecting a similar claim in State v. Hudlow, 99 Wn.2d 1, 659 P.2d 514 (1983). In that case, cross examination of a rape victim on her sexual past was sought after the victim testified on direct examination that when the defendant asked her to perform a "blow job" on him, she told him she did not know how to do that. The victim also indicated in her testimony, however, that she did in fact know what a "blow job" is. We held that no cause for cross examination existed, noting that the testimony had not been elicited in order to demonstrate that the victim "did or did not know what the term `blow job' meant from personal experience", but was intended simply to determine "whether she understood the meaning of Hudlow's words." Hudlow, at 21.
Here, similarly, the State did not ask T.D. about his predilections towards anal intercourse in order to "prove the nature of [T.D.'s] past sexual behavior". T.D. testified that he dislikes anal intercourse to explain why he had told Camara that he was not interested in having anal intercourse.
There is a sense in which T.D.'s testimony might have implied an assertion concerning his past sexual behavior. For example, it might be inferred from T.D.'s claim that he dislikes anal intercourse that T.D. has experienced anal intercourse; how else could he know that he dislikes it? Even assuming such an inference is plausible, however, its possibility does not "open the door" to cross examination about T.D.'s sexual past.
To hold that evidence which in any manner concerns a rape victim's past sexual behavior affords an opportunity for cross examination about the victim's sexual past would weaken the statutory shield protecting victims from disclosures of their prior sexual conduct. We do not conceive RCW 9A.44.020(4) to be so broad. Rather, we believe it permits cross examination on a victim's sexual past only when the State's evidence casts the victim's sexual history in a light favorable to the State's case. See Hudlow, at 21 (evidence demonstrating the victim's knowledge of the meaning of "blow job" did not open the door to cross examination concerning her sexual past because such evidence was neither "intended [n]or interpreted to convey ideas of [her] sexual virtuousness"); Tanford & Bacchino, Rape Victim Shield Laws and the Sixth Amendment, 128
T.D.'s testimony on direct examination that he does not find anal intercourse pleasurable did not cast his sexual past in a favorable light. This testimony revealed, rather than concealed, that T.D. on previous occasions had consensually engaged in anal intercourse. The State's evidence thus created no favorable impression about T.D.'s sexual mores that Camara would need to rebut. And the sort of cross examination Camara sought to undertake could not in any event have cast a less favorable light on T.D.'s testimony.
Again, Hudlow is to a great extent controlling. There, we noted that even if cross examination would have disclosed the victim's previous experiences with oral sex, this would not undermine the credibility of the victim's testimony that she knows what a "blow job" is, but told the defendant otherwise at the time he raped her. See Hudlow, at 21-22. Similarly, even if Camara could have been successful in eliciting from T.D. on cross examination an admission that T.D. recently had engaged in anal intercourse with other men, this would not contradict the substance of his direct testimony.
For the foregoing reasons, we reverse the judgment of the Court of Appeals and order that Camara's conviction be reinstated.
CALLOW, C.J., and BRACHTENBACH, DOLLIVER, DORE, PEARSON, ANDERSEN, and SMITH, JJ., concur. UTTER, J. (concurring)
I concur. I believe the Legislature expressly intended to shift the burden of showing consent to the defendant, that there is no constitutional error, and there was no other reversible error in the case.
"You have what I would analogize to a statement: `I don't drink.' The statement doesn't state that `I have never [drunk].' It says at this particular time that person does not drink.
"Now, if the victim were to take the stand and say that, `I have never in my life engaged in unsafe sex,' then I would concede that the State had opened the door."