Appeal from the Superior Court of the District of Columbia (F-26706-07) (Hon. Geoffrey M. Alprin, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Before GLICKMAN and OBERLY, Associate Judges, and KING, Senior Judge.
Opinion for the court by Judge Glickman.
Opinion concurring in the result by Judge King, at p. 22.
Under the Anti-Sexual Abuse Act of 1994, the offense of first-degree sexual abuse is defined as the use of force to cause another person to engage in or submit to a sexual act.*fn1 Until recently, another provision of the same Act made consent by the victim an affirmative defense, "which the defendant must establish by a preponderance of the evidence."*fn2 This did not mean the defendant was required to carry the burden of proving that he did not use force. As we explained in Russell v. United States, requiring the defendant to prove consent as a defense to a prosecution for first-degree sexual abuse is compatible with due process because it does not require the defendant to disprove the element of force, on which the government bears the burden of proof.*fn3 Rather, if the government proves the sexual encounter was forcible, the defendant then may attempt to prove that the victim effectively consented despite whatever force was involved. Such consent is rare; mere submission by the victim to the use of force is not the equivalent of consent.
We also recognized in Russell that evidence of consent may be relevant to the issue of whether the defendant did in fact use force to engage the complainant in sexual activity. Consequently, we held, when the defendant has raised the affirmative defense, the court must instruct the jury that it may consider evidence of consent in determining whether the government has met its burden of proving the defendant's use of force beyond a reasonable doubt -- and not just in determining whether (if the jury finds the government has proved force) the defendant has proved consent by a preponderance of the evidence.*fn4
Our opinion in Russell considered how the jury should be instructed with regard to consent when an affirmative defense of consent has been raised. We did not address whether it is proper for the court to instruct the jury on the defendant's burden to prove consent by a preponderance of the evidence when the defendant has not raised consent as an affirmative defense, but rather simply has denied any use of force in the sexual activity at issue. In the present appeal, we are confronted with that question.
Appellant Colin Hatch was tried on two counts of first-degree sexual abuse while armed and related weapons counts. The complaining witness claimed that Hatch forced her to have sex with him at gunpoint. Testifying in his own defense, Hatch admitted the sexual encounter but denied having used a weapon or force of any kind. He did not claim, nor was there evidence to show, that even if he did hold a gun on the complainant, she somehow consented to the ensuing sexual activity. Thus, Hatch did not raise an affirmative defense of consent. Nonetheless, over defense objection, the court instructed the jury not only that it could consider evidence of consent in determining whether the sexual encounter was forcible, but also that Hatch had the burden of proving consent by a preponderance of the evidence. The jury returned a verdict of guilty on all counts.
We agree with Hatch that the court should not have given the instruction requiring him to prove consent in the factual circumstances of this case. The instructions were confusing, and there exists a reasonable likelihood that they led the jury to shift the burden of proof on the element of force from the government to the defense. Accordingly, we hold that Hatch is entitled to a new trial on the first-degree sexual abuse counts and the associated counts of possession of a firearm during a crime of violence.*fn5
I. Factual and Procedural Background
A. The Government's Evidence
The charges against appellant stem from his encounter in the early morning hours of November 17, 2007, with a woman named Patricia Ancrum. As Ancrum testified at trial, she was standing on the corner of 10th and K Streets in northwest Washington, D.C., at 3:30 a.m., working as a prostitute, when Hatch drove up in a white Impala. After a brief conversation, they agreed on a price for a "date." Ancrum entered the car and they drove to a quiet street. They parked and climbed into the back seat.
Before proceeding further, Ancrum asked for payment up-front. At that, she testified, Hatch turned "mean," pointed a gun at her face, and told her "no, it's going to be free." Surprised and scared, Ancrum asked "why do you have to do this to me?" Hatch curtly told her he "didn't want to hear anything [she had] to say, don't say nothing to him no more." Ancrum decided to do what Hatch wanted in order to "get out of this thing alive." At Hatch's direction, she performed oral sex on him and allowed him to penetrate her vaginally. When ...