By Mac Flecknoe
DeSean v. Sanger, No. 101330-2 (Oct. 5, 2023). At issue: whether a reasonable belief in capacity to consent is a viable affirmative defense to a sexual assault protection order. Washington’s Supreme Court held no such defense exists.
While traveling out of state to visit a friend, Petitioner met Respondent, her friend’s roommate. During her visit, the three drank “heavily” one evening.1 Petitioner’s third adult beverage contained tequila and vodka; as she consumed it, Respondent chanted, “chug, chug, chug.”2 Respondent also observed, “you’re going to feel that.”3 Petitioner became noticeably intoxicated, the manifestations of which included throwing up and an inability to speak coherently.
Next morning, Petitioner was hungover, had a lump on her head, and realized she had blacked out. When she confronted Respondent, he “equivocated about having sex with her.”4 Petitioner’s friend took her to the hospital, where she spoke with a police detective and underwent a sexual assault examination. Due to insufficient evidence, charges were not filed in Nevada.
Upon her return to Washington, Petitioner filed a petition for a sexual assault protection order (SAPO) against Respondent, alleging nonconsensual intercourse. Respondent answered Petitioner verbally consented and was coherent at that time. Petitioner testified she could not remember having sex with Respondent because she had been so intoxicated; however, she did have flashbacks of saying “no” multiple times. Respondent testified he too had been intoxicated but believed Petitioner consented. He denied doing anything against her will. The trial court found Petitioner had lacked capacity to consent and issued a SAPO effective for one year.
On appeal, Respondent argued the trial court erred in not considering whether he reasonably believed Petitioner was not incapacitated. In other words, the trial court should have considered a defense available in criminal prosecutions.5
During the pendency of the appeal, the state legislature repealed chapter 7.90 of the Revised Code of Washington and enacted chapter 7.105. Under RCW ch. 7.105, civil protection orders are consolidated under that single statute.6 The new statute defines “consent” as “actual words or conduct indicating freely given agreement . . . to sexual contact[;]” also, it “cannot be freely given when a person does not have capacity due to disability, intoxication, or age.”7
Months later, the appellate court held the trial court erred in not considering whether Respondent reasonably believed Petitioner had capacity to consent and reversed the SAPO. The Court of Appeals held, under Nelson v. Duvall,8 the SAPO Act must be “read in harmony with the sex offenses chapter of the criminal code.”9 Thus, an affirmative defense available to criminal defendants must be available to SAPO respondents, too.
Washington’s SAPO Act provides for protection orders for sexual assault victims. SAPOs are issued where the court finds by a preponderance the petitioner has been subject to “nonconsensual sexual penetration” by the respondent.10 Typically, protective orders are reviewed for abuse of discretion, but here, the issue of affirmative defense availability requires de novo review.11
In interpreting statutes, the Court’s goal is to give effect to legislative intent (whatever that is).12 It might sound naïve, but the Supremes assume the legislature means exactly what it says.13 When possible (or expedient) the statute’s plain language controls; of course, while also considering the text of the provision, the context in which it is found, related provisions, and the statutory scheme as a whole.14 “If, after this inquiry, the statute is susceptible to more than one reasonable interpretation, it is ambiguous and we ‘may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.’”15
Here, Petitioner argued both former RCW ch. 7.90 and RCW ch. 7.105 are unambiguous and because no affirmative defense is expressly set forth, none exists.
The Court agreed.
First, allowing affirmative defenses in this context would jettison the rule of statutory interpretation that the legislature means what it says. Because the Court presumed the omission of affirmative defenses to be intentional, that apparent intent is sufficient for a court to conclude there is no ambiguity.
Secondly, SAPO is a civil remedy independent of criminal prosecution.
Sexual assault inflicts humiliation, degradation, and terror on victims[. Those] who do not report the crime still desire safety and protection from future interactions with the offender. Some cases in which the rape is reported are not prosecuted. In these situations, the victim should be able to seek a civil remedy requiring that the offender stay away from the victim.16
By contrast, certain protections are afforded to criminal defendants, including the right to set forth affirmative defenses. Here, the statute’s plain language fails to indicate an intention to allow civil respondents to raise criminal defenses.
Further, a petitioner seeking a nonconsensual sexual penetration SAPO is not required to prove intent. In other words, a sexual penetration SAPO is a strict liability action. Thus, permitting a respondent to raise reasonable belief as a defense is wholly inappropriate. Because the issue at hand is one of strict liability, the relevant inquiry is whether petitioner actually had capacity to consent. Respondents are not entitled to raise an affirmative defense of reasonable belief otherwise.
Thus, the Court held “a respondent to a SAPO based on nonconsensual sexual penetration is not entitled to raise an affirmative defense that they reasonably believed the petitioner had capacity to consent.”17
Justice Gordon McCloud authored a separate concurring opinion to note the appellate court actually expressed two grounds for reversal. The second, not mentioned in the majority opinion, is that the trial record does not contain adequate evidence to support the factual finding of incapacity. But no party sought review of that ruling.
[T]he majority’s decision to “reverse the Court of Appeals and remand for proceedings consistent with this holding,” majority at 14, does not end this case. Remember that the Court of Appeals held that the evidence was insufficient to support the trial court’s finding about the amount of alcohol [Petitioner] drank and also held that that error impacted the trial court’s conclusion [she] lacked capacity to consent. DeSean, 23 Wn. App. 2d at 477. Because those holdings survive undisturbed, the trial court must now act in accordance with those holdings on remand. Specifically, the trial court must decide, based on its remaining factual findings, whether DeSean lacked capacity and therefore suffered nonconsensual sexual penetration.18
1 Op. at 2.
2 Id.
3 Id.
4 Op. at 3.
5 See RCW 9A.44.030(1).
6 FINAL B. REP. ON ENGROSSED SECOND SUBSTITUTE H.B. 1320, at 2, 67th Leg., Reg. Sess. (Wash. 2021).
7 RCW 7.105.010(5).
8 197 Wn. App. 441 (2017).
9 Op. at 5.
10 Former RCW 7.90.090(1)(a) (in effect when the conduct allegedly occurred).
11 See DOE v. Campbell & Gwinn, 146 Wn.2d 1, 9-10 (2002) (questions of statutory interpretation).
12 Campbell & Gwinn, 146 Wn.2d at 9-10.
13 State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003).
14 State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010).
15 Op. at 7 (citations omitted).
16 Former RCW 7.90.005 (emphasis supplied).
17 Op. at 14.
18 Conc. Op. at 3-4.
