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40. How should the trial judge instruct the jury regarding the burden of proof on the issue of consent?
At a defendant's trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him.
The same state defines the crime of forcible rape as follows: «Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape.»
A state statute provides as follows: «In all criminal cases, whenever the U.S. Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits.»
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D is correct. The state statute here includes the lack of consent as an element of the offense. Accordingly, the burden of proving this element cannot shift to the defendant by a preponderance of the evidence or any other standard. The burden of proving that the victim did not consent must rest on the prosecution.
A is incorrect. The issue here is not the level of proof required, but whether the burden can be properly shifted to the defendant in the first place. Shifting the burden to the defendant to prove any element of the charged offense, even if by a preponderance of the evidence, violates due process, as stated above.
B is incorrect. Again, the issue is not the level of proof required, but whether the burden can be properly shifted to the defendant at all. Shifting the burden to the defendant to prove any element of the charged offense, even if by clear and convincing evidence, violates due process.
C is incorrect. For the reasons explained above, shifting to the defendant the burden to prove an element of a charged offense, including by beyond a reasonable doubt, offends due process.