FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MAY 6, 2021
SUPREME COURT, STATE OF WASHINGTON
MAY 6, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 98067-5
Respondent,
v. EN BANC
LELAND HOHN KNAPP IV,
Filed :___________
May 6, 2021
Petitioner.
STEPHENS, J.— For decades, Washington law treated consent as an
affirmative defense to rape, meaning the defendant charged with rape had to prove
the survivor of the alleged assault consented to sex. We recently recognized,
however, that placing the burden of proving a consent defense on the defendant
violates the defendant’s due process rights. State v. W.R., 181 Wn.2d 757, 763, 336
P.3d 1134 (2014). Now, “once a defendant asserts a consent defense and provides
sufficient evidence to support the defense, the State bears the burden of proving lack
of consent as part of its proof of the element of forcible compulsion.” Id.
1
State v. Knapp, No. 98067-5
The question in this case is whether the instructions given in Leland Knapp’s
trial adequately communicated that updated rule to the jury. Because the instructions
properly informed the jury of the applicable law, were not misleading, and permitted
Knapp to argue his theory of the case, we hold they are constitutionally adequate.
Accordingly, we affirm Knapp’s conviction.
FACTS AND PROCEDURAL HISTORY
The facts in this case are disputed. The parties agree only that Knapp had
intercourse with B.S.1 on Super Bowl Sunday, February 7, 2016; that Knapp was
high on methamphetamine at the time; and that Knapp and B.S. had been friends
since high school, when B.S. was Knapp’s boss at a Jack in the Box restaurant. The
remaining facts are contested.
I. The State’s Version of Events
Knapp unexpectedly came to B.S.’s house shortly before the Super Bowl
started. Knapp was high on methamphetamine and had consumed alcohol earlier in
the day, the combination of which left Knapp significantly impaired. Knapp sat with
B.S. on the couch and began making sexual and vulgar comments, which was out of
character and made B.S. uncomfortable. When he leaned in for a kiss, B.S. told
1
Consistent with the State’s briefing, we identify the person who survived this rape
by her initials.
2
State v. Knapp, No. 98067-5
Knapp, “‘That’s not gonna happen’” and ‘“No.”’ 4 Verbatim Report of Proceedings
(VRP) at 616. Knapp quickly left the house.
But Knapp soon returned, claiming he left his bandana behind. Once back
inside the house, Knapp threw B.S. to the ground and began pulling down her pants.
B.S. resisted, “[t]rying to pull them back up and telling [Knapp], ‘No.’” Id. at 617.
B.S. heard her neighbors outside and screamed for help, but the neighbors did not
hear her. Knapp gagged B.S. with his bandana so she could not scream anymore.
As they continued to struggle, Knapp removed the bandana from B.S.’s mouth
and tried to use it to tie her hands together. B.S. attempted to escape, scooting away
on the floor as she tried to pull her pants back up. Knapp caught B.S., pinned her
against a wall, and raped her. Knapp then fled, but not before telling B.S. that she
would never know if she was “his first or his 16th rape.” Id. at 626.
B.S. called her mother, then she called the police. The police took B.S.’s
statement and transported her to the hospital, where an examination revealed genital
injuries consistent with rape. Police apprehended Knapp soon after and, though no
officer told Knapp he was under arrest for rape, Knapp stated, ‘“It’s her word against
mine.”’ Id. at 650. An analysis of Knapp’s bandana—which he again left at B.S.’s
house—identified genetic material that matched B.S.’s saliva and skin cells,
3
State v. Knapp, No. 98067-5
consistent with B.S.’s statement to police. The Benton County prosecutor charged
Knapp with rape in the second degree by forcible compulsion.
II. Knapp’s Version of Events
Knapp acknowledged he visited B.S. at her house on Super Bowl Sunday,
offering several reasons for his visit, including to “invite [B.S.] to a birthday party,”
“pay her back the money [he] owed her,” “say that [he] had cancer,” and/or simply
“to say hello to a friend.” Id. at 638, 660. Knapp claims B.S. began demanding
drugs when she realized he was high. When Knapp refused, B.S. became angry, so
Knapp left.
Soon after, Knapp realized he forgot his bandana at B.S.’s house and returned
to retrieve it. B.S. again asked Knapp to share methamphetamine with her and
offered sex in exchange. According to Knapp, this was an arrangement he and B.S.
had made on previous occasions. Knapp decided to “get her high and have sex with
her.” Id. at 643. Knapp and B.S. had intercourse, which Knapp argued was
consensual.
Afterward, Knapp “misplaced the methamphetamines” and B.S. became
“pretty irate.” Id. at 644. B.S. threatened to call the police and falsely accuse Knapp
of rape. Knapp left and was soon stopped by police, but initially assumed he was
stopped for his outstanding legal financial obligations. Knapp told police, ‘“It’s her
4
State v. Knapp, No. 98067-5
word against mine”’ when he deduced that B.S. had, in fact, called the police to
accuse him of rape. Id. at 650.
III. Procedural History
After three days of trial,2 the trial court instructed the jury, using the
Washington Pattern Jury Instructions: Criminal (WPICs) for cases involving second
degree rape by forcible compulsion. Those instructions had been recently revised in
accordance with our decision in W.R. See 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 18.25 cmt. at 304-05 (4th ed. 2016)
(WPIC). The trial court used three pattern instructions relevant here.
The first instruction lays out the elements of second degree rape that the State
must prove in order to convict the defendant of second degree rape under RCW
9A.44.050, including that the defendant used “forcible compulsion” to have sex with
the survivor. WPIC 41.02, at 833. The second instruction defines “forcible
compulsion” as “physical force that overcomes resistance, or a threat . . . that places
a person in fear of death or physical injury to oneself or another person or in fear of
being kidnapped or that another person will be kidnapped.” WPIC 45.03, at 918.
And the third instruction provides that “[e]vidence of consent may be taken into
2
This trial was Knapp’s second. Immediately after the jury returned the verdict in
Knapp’s first trial, the presiding juror revealed that she had made material
misrepresentations during voir dire, and the trial court granted Knapp’s motion for a new
trial. No aspect of Knapp’s first trial is at issue here.
5
State v. Knapp, No. 98067-5
consideration in determining whether the defendant used forcible compulsion to
have [sexual intercourse].” WPIC 18.25, at 304 (second alteration in original).
Knapp objected to the second and third pattern instructions, arguing they did
not adequately inform the jury that the State bears the burden of proving lack of
consent beyond a reasonable doubt. Knapp proposed a pair of alternative
instructions defining forcible compulsion and describing how evidence of consent
may be used. Knapp’s proposed instruction on forcible compulsion provided:
Forcible compulsion exists when both of the following elements are present:
(1) a person has not consented to sexual intercourse, [and]
(2) that person has been subjected to physical force that overcomes
resistance, or a threat . . . .
Clerk’s Papers (CP) at 411 (emphasis added). Knapp’s proposed instruction on
consent provided:
Consent means that at the time of the act of sexual intercourse there are actual
words or conduct indicating a freely given agreement to have sexual
intercourse. The defendant has no burden to prove that the sexual intercourse
was consensual. It is the State’s burden to prove the absence of consent
beyond a reasonable doubt.
CP at 412.
The trial court rejected Knapp’s proposed instructions, reasoning those
instructions would inappropriately add an element to the crime charged. The court
instructed the jury using the updated WPICs, and the jury convicted Knapp.
6
State v. Knapp, No. 98067-5
Knapp timely appealed, arguing the pattern jury instructions were
constitutionally inadequate because, contrary to this court’s decision in W.R., they
do not specifically instruct the jury that the State bears the burden of disproving
consent beyond a reasonable doubt. Division Three of the Court of Appeals affirmed
Knapp’s conviction. Knapp then petitioned this court for review, which we granted.
State v. Knapp, 195 Wn.2d 1014, 461 P.3d 1197 (2020).
ANALYSIS
The question before us is straightforward: Do Washington’s updated pattern
jury instructions for second degree rape by forcible compulsion adequately convey
that the State bears the burden to prove lack of consent as part of its proof of the
element of forcible compulsion? We hold today that they do.
In criminal trials, due process “requires that jury instructions adequately
convey to the jury that the State bears the burden of proving ‘every element of the
crime charged beyond a reasonable doubt.’” State v. Imokawa, 194 Wn.2d 391, 396,
450 P.3d 159 (2019) (quoting State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889
(2002)). A corollary rule is that a defendant cannot be required to disprove any fact
that constitutes the crime charged. So when a defendant raises a defense that would
necessarily negate an element of the crime charged, the jury instructions must make
clear that the State bears the burden of disproving that defense. See W.R., 181 Wn.2d
7
State v. Knapp, No. 98067-5
at 763 (“[O]nce a defendant asserts a consent defense and provides sufficient
evidence to support the defense, the State bears the burden of proving lack of consent
as part of its proof of the element of forcible compulsion.”).
“When instructing the jury that the State has the burden to disprove a defense,
‘a specific instruction is preferable, but failure to provide one is not reversible per se
so long as the instructions, taken as a whole, make it clear that the State has the
burden.”’ Imokawa, 194 Wn.2d at 397 (quoting State v. Acosta, 101 Wn.2d 612,
621, 683 P.2d 1069 (1984)). Jury instructions are constitutionally adequate “when,
taken as a whole, they properly inform the jury of the applicable law, are not
misleading, and permit the defendant to argue his theory of the case.” State v. Tili,
139 Wn.2d 107, 126, 985 P.2d 365 (1999). Because jury instructions are statements
of law, we review challenges to the accuracy and adequacy of jury instructions de
novo. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).
Knapp challenges the trial court’s instructions on the forcible compulsion
element of second degree rape and consent, which followed WPIC 45.03 and 18.25.
He claims our decision in W.R. requires the State to prove forcible compulsion and
lack of consent, so his proposed instructions are a more accurate statement of the
law. Knapp argues the pattern jury instructions given by the trial court are
8
State v. Knapp, No. 98067-5
constitutionally inadequate because they did not explicitly provide that the State
bears the burden to prove lack of consent beyond all reasonable doubt.
Knapp’s argument is flawed for three reasons. First, Knapp misunderstands
our decision in W.R.: we did not hold that the State must prove lack of consent
separate and apart from forcible compulsion but, rather, that “the State bears the
burden of proving lack of consent as part of its proof of the element of forcible
compulsion.” 181 Wn.2d at 763 (emphasis added). Second, Knapp does not show
the trial court’s jury instructions failed to adequately convey that the State bears the
burden of proof. Finally, Knapp’s proposed instructions would impermissibly add
lack of consent as a separate element for the crime of second degree rape by forcible
compulsion. The trial court properly rejected Knapp’s proposed instructions and
instructed the jury according to the pattern jury instructions applicable to second
degree rape by forcible compulsion.
I. Consent and Forcible Compulsion Are Not Independent Elements of Second
Degree Rape; One Negates the Other
In W.R., this court overturned 25 years of precedent and recognized that “due
process prohibits shifting the burden to the defendant to prove consent.” 181 Wn.2d
at 768. We did so in part because the United States Supreme Court had recently
“clarified that the prosecution must always bear the burden of disproving a defense
that necessarily negates an element of the charged offense.” Id. at 764 (citing Smith
9
State v. Knapp, No. 98067-5
v. United States, 568 U.S. 106, 110, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013)). We
explained that “forcible compulsion contemplates force that overcomes actual
resistance or threats that place a person in actual fear[, so t]here can be no forcible
compulsion when the victim consents, as there is no resistance to overcome.” Id. at
765. In the context of rape, consent and forcible compulsion are mutually exclusive.
“Because the defense of consent necessarily negates the element of forcible
compulsion,” we held the “defendant cannot be burdened with proving consent by a
preponderance of the evidence, as the burden must remain on the State to prove
forcible compulsion beyond reasonable doubt.” Id. at 766-67. Accordingly, “the
State can require the defendant to prove that defense only to the extent of creating a
reasonable doubt as to his or her guilt.” Id. at 766 (citing State v. Riker, 123 Wn.2d
351, 367, 869 P.2d 43 (1994)). Once the defendant has asserted a consent defense
and presented sufficient evidence to support that defense, “the State bears the burden
of proving lack of consent as part of its proof of the element of forcible compulsion.”
Id. at 763.
Contrary to Knapp’s claims, W.R. did not hold that the State must prove lack
of consent in addition to forcible compulsion. Instead, we explained that consent
and forcible compulsion are “conceptual opposites.” Id. at 768. Evidence of consent
suggests there was no forcible compulsion, and evidence of forcible compulsion
10
State v. Knapp, No. 98067-5
suggests there was no consent. See id. at 766 (“[C]redible evidence of consent
necessarily raises doubt as to the defendant’s guilt.”). Because “force is an objective
indicator of nonconsent,” Washington law “do[es] not treat force and nonconsent as
separate formal elements.” Id. at 767 (citing and quoting Wallace D. Loh, The
Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical
Study, 55 WASH. L. REV. 543, 552 n. 43 (1980)).
For that reason, we observed, “It is not necessary to add a new instruction on
consent” because the issue of consent inherently exists within the element of forcible
compulsion. Id. at 767 n.3. That observation aligns with our approach to jury
instructions for negating defenses in other contexts, where we have held that
“although the jury was not explicitly instructed on the State’s burden to disprove
[the defense that negates an element of the crime],” the instructions were
nevertheless constitutionally adequate because “the defense and the element are
mutually exclusive.” See Imokawa, 194 Wn.2d at 399-400.
In State v. King, 92 Wn.2d 541, 599 P.2d 522 (1979), we upheld a homicide
conviction even though the jury was not explicitly instructed that the State bore the
burden of proof to disprove the defendant’s claim of self-defense. There, the trial
court instructed the jury that one element of the crime was that ‘“the killing, not
being either excusable or justifiable, was done with the intent to cause the death”’ of
11
State v. Knapp, No. 98067-5
the victim. Id. at 544 (emphasis omitted). The trial court further instructed the jury
that “‘[t]he killing of a human being is justifiable when committed in the lawful
defense of the slayer or of any other person in his presence or company.”’ Id. But
the trial court refused to give the defendant’s proposed instruction on self-defense:
“‘When a defendant claims that he killed another in self-defense of his own person
or person in his presence the burden is upon the State to prove beyond a reasonable
doubt that there is an absence of self-defense.’” Id. at 543. We affirmed the
conviction, explaining that “instructions Nos. 20 and 29 allocated to the State the
burden of proof on the issue of self-defense and sufficiently permitted King to argue
his theory of the case,” even though King did not receive his proposed instruction.
Id. at 546.
Similarly, in Imokawa, we affirmed convictions for vehicular homicide and
vehicular assault even though the jury was not explicitly instructed that the State
bore the burden to prove the absence of a superseding intervening cause. 194 Wn.2d
at 403. The jury was instead instructed that the State bore the burden of proving
proximate cause beyond a reasonable doubt and that proximate cause could, in some
circumstances, be superseded by an intervening act. Id. at 395. We reasoned that
“proximate cause and presence of a superseding intervening cause are mutually
exclusive,” so the “trial court did not need to explicitly instruct the jury that the State
12
State v. Knapp, No. 98067-5
has the burden to prove absence of superseding intervening cause.” Id. at 402. We
concluded that when “a jury is instructed as to the statutory elements of a crime, that
the State bears the burden of proving all elements beyond a reasonable doubt, and
that the defendant has no burden of proof, the instructions as a whole are
constitutionally adequate and do not violate due process.” Id. at 403.
The same is true here. As we explained in W.R., the State’s burden to prove
lack of consent is wholly contained within its burden to prove forcible compulsion.
Like proximate cause and superseding intervening cause, consent and forcible
compulsion are mutually exclusive. The two cannot coexist, so there is no reason to
treat them as separate, independent elements. The trial court properly instructed
Knapp’s jury on the statutory elements of second degree rape, explained that the
State bears the burden of proving all elements beyond a reasonable doubt, and
acknowledged that “[e]vidence of consent may be taken into consideration in
determining whether the defendant used forcible compulsion to have [sexual
intercourse].” WPIC 18.25, at 304 (second alteration in original). Under our
precedent, these instructions were constitutionally adequate.
Nevertheless, Knapp argues his jury should have been explicitly instructed
that the State bears the burden of proving lack of consent beyond a reasonable doubt
because that is the only way to ensure the burden is not impermissibly shifted to the
13
State v. Knapp, No. 98067-5
defendant. Knapp is mistaken: under our precedent, the jury instructions given at
his trial made the State’s burden clear.
II. The Jury Instructions Properly Placed the Burden of Proving Each Element
of Second Degree Rape on the State and Did Not Shift the Burden of
Proving Consent to Knapp
We have long held that ‘“a specific instruction is preferable”’ when
instructing the jury that the State bears the burden of proving the absence of
a negating defense. Imokawa, 194 Wn.2d at 397 (quoting Acosta, 101 Wn.2d at
621 (distinguishing State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064
(1983) (plurality opinion))). But ‘“failure to provide one is not reversible per
se so long as the instructions, taken as a whole, make it clear that the State
has the burden.”’ Id. (quoting Acosta, 101 Wn.2d at 621). “[S]o long as the
burden is not shifted to the defendant in the instructions, the jury need not be
instructed as to the State’s burden to prove absence of a defense; it need only
be specifically instructed on the essential elements of the crime.” Id. at 400-01.
Here, the trial court properly instructed the jury that the State bore the burden
of proof on each element of second degree rape by forcible compulsion and that
Knapp’s consent defense could prevent the State from meeting that burden. The trial
court’s instructions on consent were based on WPIC 18.25, as amended following
our decision in W.R. That pattern instruction—designed to instruct the jury on the
14
State v. Knapp, No. 98067-5
defense of consent in first and second degree rape—provides that “[e]vidence of
consent may be taken into consideration in determining whether the defendant used
forcible compulsion to have [sexual intercourse].” WPIC 18.25, at 304 (second
alteration in original).
Knapp complains WPIC 18.25 inappropriately relieves the State of its burden
to prove forcible compulsion by failing to clearly and unambiguously set forth the
State’s burden to prove lack of consent. He acknowledges our recent holding in
Imokawa that trial courts do not need to explicitly instruct the jury that the State has
the burden to prove the absence of a negating defense, but he attempts to distinguish
that case because the challenged instructions there included a definition relevant to
the defense and WPIC 18.25 does not define consent in the same manner. But this
argument is unavailing.
What matters is not whether one jury instruction provides a definition, but
whether the instructions as a whole “properly inform the jury of the applicable law,
are not misleading, and permit the defendant to argue his theory of the case.” Tili,
139 Wn.2d at 12. Here, reading WPIC 18.25 in the context of the other relevant jury
instructions, the trial court’s instructions clearly meet this standard. WPIC 41.02
accurately explains the elements of second degree rape under RCW 9A.44.010(6),
including forcible compulsion, and puts the burden of proof squarely on the State.
15
State v. Knapp, No. 98067-5
WPIC 45.03 defines “forcible compulsion” according to statute. And WPIC 18.25
explains evidence of consent is relevant to “determining whether the defendant used
forcible compulsion to have [sexual intercourse].” These clear, accurate descriptions
of the law were not misleading.
Perhaps most importantly, these instructions plainly allowed Knapp to argue
his theory of the case. Knapp’s defense was that the sexual intercourse was
consensual, and the instructions allowed him to argue that B.S.’s alleged consent
meant the State failed to prove forcible compulsion beyond a reasonable doubt. The
jury was unconvinced by Knapp’s arguments, but that is not the fault of the trial
court’s jury instructions.
III. Knapp’s Proposed Jury Instruction Would Impermissibly Add an Element to
Second Degree Rape and Reflect Antiquated Notions of How Victims of
Sexual Assault Should Act
As we know, lack of consent is not a separate and distinct element of second
degree rape by forcible compulsion. W.R., 181 Wn.2d at 763 (“the State bears the
burden of proving lack of consent as part of its proof of the element of forcible
compulsion” (emphasis added)). But Knapp’s proposed instruction on forcible
compulsion, which includes the entirety of WPIC 45.03, would have explicitly added
consent as an additional element:
Forcible compulsion exists when both of the following elements are present:
(1) a person has not consented to sexual intercourse, [and]
16
State v. Knapp, No. 98067-5
(2) that person has been subjected to physical force that overcomes
resistance, or a threat . . . .
CP at 411 (emphasis added). Under this instruction, the State would have to prove
lack of consent as a distinct element in addition to its proof of forcible compulsion.
Neither RCW 9A.44.050 nor W.R. makes lack of consent a distinct element of the
crime of second degree rape by forcible compulsion. Knapp’s proposed instruction
effectively seeks to amend the law and add a new element to the State’s burden.
The trial court properly rejected that instruction as an incorrect statement of law.
Worse, Knapp’s proposed instruction represents a retreat from current law
back to antiquated notions of the rape survivor’s “appropriate” behavior, by shifting
the focus of the trial to the survivor’s (in)actions. The dissent in W.R. warned against
the consequences of such a retreat: “wrongfully put[ting] the victim’s actions and
reputation on trial” makes victims “less likely to report the rape” because “they may
feel that they themselves are on trial.” 181 Wn.2d at 772, 773 (Owens, J., dissenting).
By adding a separate requirement to prove an element of lack of consent, Knapp’s
proposed instruction would shift the focus of trial “to [the victim’s] actions rather
than the crime against them.” Id. at 773. Indeed, that is precisely what Knapp’s
strategy was at trial and during closing arguments. See 4 VRP at 717 (“So, let’s talk
about what she said[,] . . . that during this allegation she started screaming, and she
started screaming because she heard the neighbors talking outside her mobile home
17
State v. Knapp, No. 98067-5
. . . . They didn’t come running to the door, banging on the door. They didn’t hear
her. She can hear them talking, but they can’t hear her screaming. It’s a problem
[for the State’s ability to prove lack of consent].”).
Our decision in W.R. specifically and intentionally avoided that outcome by
declining to recognize lack of consent as a separate and distinct element of second
degree rape by forcible compulsion. We explained “that the State’s burden to prove
forcible compulsion encompasses the concept of nonconsent [and] is consistent with
rape reform laws” by “‘focus[ing] more on the actor’s use or threat of force rather
than the victim’s conduct as the external criterion of nonconsent.’” Id. at 767
(quoting Loh, supra, at 550). By locating the State’s burden to prove lack of consent
squarely within its burden to prove forcible compulsion, we maintained the proper
focus of rape prosecutions on the defendant’s conduct. In this way, W.R.’s holding
balances the defendant’s due process rights with “‘society’s interest in accurately
identifying perpetrators of rape, not in reinforcing traditional assumptions regarding
appropriate behavior of [virtuous] [men and] women.’” Id. at 773 (alterations in
original) (internal quotation marks omitted) (quoting State v. Camara, 113 Wn.2d
631, 639, 781 P.2d 483 (1989); Camara was overruled in part by W.R., 181 Wn.2d
757).
18
State v. Knapp, No. 98067-5
Knapp’s proposed instruction would upset that delicate balance and
impermissibly add an element to the crime of second degree rape by forcible
compulsion. The trial court properly rejected that erroneous instruction in favor of
the applicable pattern jury instructions.
CONCLUSION
Because the trial court’s instructions properly informed the jury of the State’s
burden of proving second degree rape by forcible compulsion, were not misleading,
and permitted Knapp to argue his theory of the case, we hold those instructions were
constitutionally adequate. We affirm the Court of Appeals and uphold Knapp’s
conviction.
19
State v. Knapp, No. 98067-5
WE CONCUR:
___________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
20
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
No. 98067-5
GORDON McCLOUD, J. (concurring)—I agree with the majority that, read
as a whole, the instructions at Leland Hohn Knapp’s trial “properly inform[ed] the
jury of the applicable law, [were] not misleading, and permit[ted] the defendant to
argue his theory of the case.” State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365
(1999) (citing State v. Theroff, 95 Wn.2d 385, 389, 622 P.2d 1240 (1980));
majority at 19. But I write separately to emphasize that trial courts retain discretion
to instruct juries on the statutory definition of consent and the parties’ burdens with
regard to that defense.
I therefore respectfully concur.
ANALYSIS
I. The Jury Instructions Were Constitutionally Adequate
I agree with the majority that taken as a whole, the jury instructions in this
case were constitutionally adequate and did not impermissibly shift the burden of
proving consent to the defendant.
1
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
As the majority explains, the parties do not contest the fact that Knapp and
B.S. had sexual intercourse on February 7, 2016. The parties do, however, contest
the details of what happened and whether the acts were consensual. Majority at 2-
5. Knapp’s defense theory was that the acts were all consensual. 4 Verbatim Report
of Proceedings (VRP) (Feb. 7, 2018) at 637, 643, 711.
The jury received the following instructions relevant to the elements of rape
that bear on consent. Instruction 7 stated the elements of second degree rape in
violation of RCW 9A.44.050 as follows:
To convict the defendant of the crime of rape in the second degree,
each of the following three elements of the crime must be proved beyond
a reasonable doubt:
....
(2) That the sexual intercourse occurred by forcible compulsion;
....
Clerk’s Papers (CP) at 427; cf. WPIC 1 41.02, at 833-34. Instruction 9 defined
“forcible compulsion”:
Forcible compulsion means physical force that overcomes resistance,
or a threat, express or implied, that places a person in fear of death or
physical injury to oneself or another person or in fear of being kidnapped
or that another person will be kidnapped.
1
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL (4th ed. 2016) (WPIC).
2
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
CP at 429; cf. WPIC 41.02, at 833-34. And instruction 10 stated the following
about consent:
Evidence of consent may be taken into consideration in determining
whether the defendant used forcible compulsion to have sexual
intercourse.
CP at 430; cf. WPIC 18.25, at 304.
Knapp argued that instructions 9 and 10 did not make clear that the State is
the party that bears the burden of proving lack of consent. Majority at 6; 4 VRP
(Feb. 7, 2018) at 680-81. He offered two alternative instructions, discussed infra
Part II. The trial court rejected them. 4 VRP (Feb. 7, 2018) at 682; CP at 411, 412.
As a result, the jury received no instruction at all on the definition of consent or the
burden of proof on lack of consent.
Knapp argues that this made the court’s instructions misleading. He
contends that those instructions conflicted with State v. W.R., which held that
“once a defendant asserts a consent defense and provides sufficient evidence to
support the defense, the State bears the burden of proving lack of consent as part of
its proof of the element of forcible compulsion.” 181 Wn.2d 757, 763, 336 P.3d
1134 (2014).
Like the majority, I disagree. In W.R., we made clear that a finding of
forcible compulsion cannot coexist with a finding of consent: “no circumstance
3
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
could exist where a defendant forcibly compels a victim to engage in consensual
sexual intercourse.” Id. at 768. For that reason, we held that making the defendant
bear the burden of proving consent by a preponderance of the evidence violates
due process clause protections. Id. at 765. Instead, “[w]hile the defendant may be
tasked with producing evidence to put consent in issue, such evidence need only
create reasonable doubt as to the victim’s consent.” Id. at 768.
That holding means that if the State proves forcible compulsion, it has
necessarily proved lack of consent. See id. at 767. Thus, the court need not always
provide an additional instruction defining consent in a second degree rape
prosecution. Id. at 767 n.3. Instead, it is sufficient for the court to simply instruct
the jury on the elements of the crime. Id. And while it is often preferable for the
court to explicitly tell the jury that the State bears the burden of disproving a
negating defense, “‘[s]o long as the burden is not shifted to the defendant in
the instructions, the jury need not be instructed as to the State’s burden to prove
absence of a defense; it need only be specifically instructed on the essential
elements of the crime.’” Majority at 14 (quoting State v. Imokawa, 194 Wn.2d 391,
400-01, 450 P.3d 159 (2019) (emphasis added)).
Here, the trial court instructed the jury on the elements of the crime, on the
fact that the State bore the burden of proving each element beyond a reasonable
4
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
doubt, and on the definition of forcible compulsion. CP at 427, 429. I therefore
agree with the majority that under our precedent, the instructions were
constitutionally adequate.
II. Trial Courts Must, and Do, Retain the Discretion To Instruct Juries on the
Definition of Consent and on the State’s Burden of Proof Regarding
Negating Defenses
Because the conclusion that the jury instructions were constitutionally
adequate is sufficient to answer the question before us, I would end the discussion
there.
In its Part III, however, the majority goes on to address Knapp’s first
proposed instruction, which was rejected by the trial court. Majority at 16-17. That
proposed instruction stated, in relevant part,
Forcible compulsion exists when both of the following elements are present:
(1) a person has not consented to sexual intercourse,
(2) that person has been subjected to physical force that overcomes
resistance.
CP at 411. I agree with the majority that the trial court properly rejected this
instruction because it incorrectly states that lack of consent and forcible
compulsion are separate “elements.” Majority at 17. In fact, as discussed above,
consent and forcible compulsion are conceptual opposites: by proving forcible
5
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
compulsion, the State necessarily proves lack of consent. W.R., 181 Wn.2d at 767;
supra Part I.
The majority does not address Knapp’s second proposed instruction, which
would have instructed the jury on the definition of “consent” and the State’s
burden of proof. That proposed instruction read:
Consent means that at the time of the act of sexual intercourse there are
actual words or conduct indicating a freely given agreement to have sexual
intercourse. The Defendant has no burden to prove that the sexual
intercourse was consensual. It is the State’s burden to prove the absence of
consent beyond a reasonable doubt.
CP at 412.
I write to emphasize that trial courts retain the discretion to instruct juries in
this manner. By leaving the second proposed instruction unaddressed, I believe the
majority’s Part III—even though it is dicta—creates potential confusion.
Unlike his first proposed instruction, Knapp’s second proposed instruction,
alone, does not misstate the law or “impermissibly add an element to the crime.”
Majority at 17, 18. In fact, Knapp’s second proposed instruction would have
provided the jury with the statutory definition of consent and the accurate
statement of the parties’ burdens with regard to the defense of consent.
This is clear, first, from the fact that the first sentence of the proposed
instruction was identical in all relevant respects to RCW 9A.44.010(7), the
6
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
statutory definition of consent.2 It is thus an accurate statement of the law that was
relevant to an issue in the case. The second and third sentences of the proposed
instruction correctly explained the parties’ burdens of proof with regard to the
negating defense of consent. In W.R., we plainly held that because “consent
negates the element of forcible compulsion,” “once a defendant asserts a consent
defense and provides sufficient evidence to support the defense, the State bears the
burden of proving lack of consent as part of its proof of the element of forcible
compulsion.” 181 Wn.2d at 763. That is precisely what Knapp’s proposed
instruction would have stated: “The Defendant has no burden to prove that the
sexual intercourse was consensual. It is the State’s burden to prove the absence of
consent beyond a reasonable doubt.” CP at 412. Because consent had been raised
as a defense, the State had the burden to disprove it as part of its burden to prove
the element of forcible compulsion.
While W.R. held that “[i]t is not necessary to add a new instruction on
consent simply because evidence of consent is produced,” 181 Wn.2d at 767 n.3
2
RCW 9A.44.010(7) provides, “‘Consent’ means that at the time of the act of
sexual intercourse or sexual contact there are actual words or conduct indicating freely
given agreement to have sexual intercourse or sexual contact.” WPIC 45.04, at 920, is
nearly identical. Presumably because this was a rape prosecution rather than a
prosecution for indecent liberties, Knapp’s proposed instruction omitted the phrase “or
sexual contact” from his proposed instruction.
7
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
(emphasis added), W.R. did not hold that courts are barred from providing such an
instruction. Unlike Knapp’s first proposed instruction, which mischaracterized
forcible compulsion and lack of consent as separate elements, his second proposed
instruction would not have improperly added an element for the State to prove.
Instead, it would have provided a correct, relevant statement of the law and would
have represented the “‘preferable’” approach of giving a “‘specific instruction’” on
the State’s burden to disprove a defense. Majority at 8 (quoting Imokawa, 194
Wn.2d at 397).
There are compelling reasons why a trial court might find it proper to give
such an instruction on consent—and I write separately to make clear that this
option remains open.3 Unlike other legal concepts (like those cited by the majority
3
As the majority explains, Knapp was tried once before; he sought and obtained a
new trial because the presiding juror revealed she had made material misrepresentations
during voir dire. Majority at 5 n.2; 3 VRP (Dec. 6, 2017) at 424. That first trial is not at
issue here. But interestingly, the judge at Knapp’s first trial agreed with Knapp that it was
appropriate to instruct the jury on consent, reasoning that
[issues concerning the burden of proof are] of constitutional dimension[.] I don’t
see how you can ignore that and not instruct the jury on consent. It just doesn’t
seem logical to me and doesn’t seem fair at all to a defendant in these
circumstances.
You know, we have in front of us a case where she clearly says, “He
exercised forcible compulsion, and I did not consent,” and he clearly says, “She
consented.” I think this—the facts of this case do cry out for me to instruct in this
way.
8
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
in its discussion of negating elements), rape has its own charged history that has
led to significant confusion about what constitutes “consent.” Lack of consent has
always been “‘the basic substantive element of the crime’” of rape. State v. Lynch,
178 Wn.2d 487, 512, 309 P.3d 482 (2013) (Gordon McCloud, J., concurring)
(quoting Wallace Loh, The Impact of Common Law and Reform Rape Statutes on
Prosecution: An Empirical Study, 55 WASH. L. REV. 543, 557 (1980)); W.R., 181
Wn.2d at 767. But the way the legal system has defined and measured consent has
changed significantly, even in recent memory. Today, our law recognizes that if a
person does not affirmatively communicate their freely given agreement to
participate in sexual intercourse, they have not consented. RCW 9A.44.010(7). But
it wasn’t long ago that the law primarily focused on the alleged victim’s resistance
as the objective measure of nonconsent. State v. Severns, 13 Wn.2d 542, 544, 125
P.2d 659 (1942) (element of rape was “forcibly overcoming [the alleged victim’s]
resistance”); State v. Mertz, 129 Wash. 420, 421, 225 P. 62 (1924) (jury properly
2 VRP (July 27, 2017) at 349-50. Accordingly, the judge at Knapp’s first trial gave an
instruction on consent following WPIC 45.04, at 920, which is essentially identical to the
statutory definition of consent. 2 VRP (July 27, 2017) at 358. The court also gave a
modified version of WPIC 45.03, at 918, the definition of “forcible compulsion,” which
explicitly stated that consent negates forcible compulsion. 2 VRP (July 27, 2017) at 358
(“Forcible compulsion means the absence of consent together with physical force that
overcomes resistance or a threat . . . .”); see also id. at 345.
9
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
instructed that “‘in order to constitute the crime of rape[,] force must be used by
the male, and that force must be sufficient to overcome the will and consent of the
prosecuting witness’”). Even under the rape reform statutes of 1975, a person
could not be raped by their spouse, under the law, because marriage meant consent
to sexual intercourse. See LAWS OF 1975, 1st Ex. Sess., ch. 14, §§ 4, 5, 6, 8, 9.
Although the marriage defense has been abolished with regard to certain sex
offenses,4 it remains with regard to others. At the time of this writing, a bill is
pending in the legislature that would abolish the remaining vestiges of the marriage
defense. 5
4
In 1983, the legislature abolished the marital defense to first and second degree
rape. See LAWS OF 1983, ch. 118, §§ 1, 2 (amending RCW 9A.44.040(1) and RCW
9A.44.050(1)). In 2013, the legislature abolished the marital defense to third degree rape
and to indecent liberties by forcible compulsion when the victim is incapable of consent
or when the perpetrator is a health care provider and the victim is a patient. LAWS OF
2013, ch. 94, §§ 1, 2 (amending RCW 9A.44.060(1) and RCW 9A.44.100(1)).
5
S.B. 5177 deletes language defining certain sex offenses in terms of whether the
perpetrator was married to the victim. Many sex offense statutes still contain such
language, including RCW 9A.44.050(1)(c), (e), (f) (second degree rape of a person who
is developmentally disabled, is a resident of a facility for persons with a mental disorder
or chemical dependency, or is a frail elder or vulnerable adult), .073 (first degree rape of
a child), .076 (second degree rape of a child), .079 (third degree rape of a child), .083
(first degree child molestation), .086 (second degree child molestation), .089 (third
degree child molestation), .093 (first degree sexual misconduct with a minor), .096
(second degree sexual misconduct with a minor), and .100 (indecent liberties with a
person who is developmentally disabled, is a resident of a facility for persons with a
mental disorder or chemical dependency, or is a frail elder or vulnerable adult). See S.B.
5177, 67th Leg., Reg. Sess. (Wash. 2021).
10
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
In the recent past, too, even when the defendant was accused of using
physical violence to subdue the complainant, questions by both parties often
centered on that complainant’s sexual history and reputation, whether her clothes
signaled “permission,” or whether the two had had prior sexual contact—all based
on the obviously faulty assumption that this information was relevant to whether
the complainant consented on the occasion in question. Rape shield statutes, which
make most evidence regarding an alleged victim’s sexual history inadmissible in a
rape prosecution, were enacted relatively recently as cultural attitudes shifted
toward an acknowledgment that evidence of prior consent to sexual conduct “is
usually of little or no probative value in predicting the victim’s consent to sexual
conduct on the occasion in question.” State v. Hudlow, 99 Wn.2d 1, 9, 659 P.2d
514 (1983) (explaining that adoption of rape shield statutes nationwide is a “recent
trend, reversing years of the opposite rule” (footnote omitted)); see also RCW
9A.44.030 (Washington’s rape shield statute, first enacted in 1975).
These recent, significant, and ongoing developments in the legal system’s
understanding of consent illustrate why we should not foreclose a trial court’s
ability to instruct a jury on the accurate, statutory definition of consent.
What is more, providing the modern, affirmative statutory definition of
consent in the context of a second degree rape prosecution like Knapp’s could help
11
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
ensure that the jury does not make decisions based on “antiquated notions of the
rape survivor’s “appropriate” behavior.” Majority at 17. As discussed above, the
common law approach to rape certainly did focus on the survivor’s resistance as an
objective measure of nonconsent. But the current statutory definition of consent
does not do that. Instead, it focuses on whether a person’s affirmative words or
actions indicate a “freely given agreement” to sex. RCW 9A.44.010(7). Under this
definition, consent logically cannot be inferred from a person’s failure to
physically resist. Indeed, the only remaining reference to resistance in the statutes
relevant to this case is contained in the definition of forcible compulsion itself, a
fact the majority doesn’t address. RCW 9A.44.010(6) (“forcible compulsion”
encompasses “physical force which overcomes resistance . . .”). Thus, providing
our statutory definition of consent would not shift the focus from the actions of the
complainant to the actions of the defendant.
I view the majority’s Part III as an unnecessary addition to the opinion—that
is, as dicta—but I believe its focus only on the first, erroneous proposed instruction
is potentially misleading. Courts must—and do—retain the discretion to instruct
the jury on the statutory definition of consent and on the parties’ burdens regarding
the negating defense of consent as they strive to ensure that jury instructions
“properly inform the jury of the applicable law, are not misleading, and permit the
12
State v. Knapp (Leland Hohn, IV), No. 98067-5
(Gordon McCloud, J., concurring)
defendant to argue his theory of the case.” Tili, 139 Wn.2d at 126 (citing
Theroff, 95 Wn.2d at 389).
CONCLUSION
I agree that the actual jury instructions given in this case were
constitutionally sufficient. But trial courts should, and do, retain the ability to
provide accurate instructions to the jury on the statutory definition of consent and
on the parties’ burdens related to consent, when proper. I disagree with any
suggestion in the majority opinion to the contrary.
I therefore respectfully concur.
____________________________
13
State v. Knapp
Combined Opinion