DeSean v. Sanger

536 P.3d 191

Carmella DESEAN, Petitioner,

v.Isaiah SANGER, Respondent.

No. 101330-2

Supreme Court of Washington, En Banc.

Argued June 1, 2023

Filed October 5, 2023

Rachel Lynn Johnson, Attorney at Law, 2220 H Street #1, Vancouver, WA, Margaret Macrae, Attorney at Law, 7141 Cleanwater Dr. Sw., Olympia, WA, Jennifer Ammons, Northwest Justice Project, 715 Tacoma Ave. S., Tacoma, WA, for Petitioner.

Nicole Terece Dalton, Dalton Law Office PLLC, 2904 Main St., Vancouver, WA, for Respondent.

Richard B. Lumley, Gordon Thomas Honeywell LLP, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, Evangeline Stratton, Zyreena Gutierrez Choudhry, Family Violence Appellate Project, 1239 120th Ave. Ne. Ste. J., Bellevue, WA, for Amicus Curiae on behalf of Et Al. Family Violence Appellate Project.

Riddhi Mukhopadhyay, Sexual Violence Law Center, 101 Yesler Way Ste. 300, Seattle, WA, for Amici Curiae on behalf of Sexual Violence Law Center, Legal Voice, Coalition Ending Gender-Based Violence, Rebuilding Hope, Washington State Coalition of Sexual Assault Programs.

OWENS, J.

¶1 The Sexual Assault Protection Order Act (SAPOA), former ch. 7.90 RCW (2020), allows a victim of unwanted sexual contact to seek a civil protection order against the perpetrator. Under the act, a court enters a protection order if it finds that the petitioner has been a victim of nonconsensual sexual conduct or penetration by the respondent. At issue is whether a respondent to sexual assault protection order (SAPO) based on nonconsensual penetration may raise a criminal affirmative defense that they reasonably believed the petitioner had capacity to consent.

¶2 Carmella DeSean sought a SAPO against Isaiah Sanger after an evening of drinking ended in unwanted sex. At the evidentiary hearing, Sanger argued DeSean consented and had capacity to do so. The trial court found DeSean lacked capacity due to intoxication, declined to consider Sanger's defense, and granted the SAPO. Sanger appealed, and the Court of Appeals reversed, holding that under the SAPOA and Nelson v. Duvall , 197 Wash. App. 441, 387 P.3d 1158 (2017), the trial court should have considered Sanger's affirmative defense.

¶3 We reverse the Court of Appeals and hold that the SAPOA does not permit respondents in nonconsensual sexual penetration cases to raise the affirmative defense that they reasonably believed the victim had capacity to consent. The plain language of the statute is unambiguous and omits affirmative defenses. The SAPOA functions independently from the criminal code, and we decline to graft a criminal defense into a statute intended to provide sexual assault victims with civil remedies.

FACTS

¶4 In August 2020, Carmella DeSean traveled to Nevada to see her friend, Bailey Duncan. 1 Verbatim Rep. of Proc. (VRP) at 7. There she met Isaiah Sanger, Duncan's roommate, and the three drank heavily one evening. Id. at 33-34; Clerks Papers (CP) at 27-29. DeSean's third drink contained tequila and vodka; as she drank it, Sanger chanted, "Chug, chug, chug" and told DeSean, "[Y]ou're going to feel that." 1 VRP at 7; CP at 28, 78. DeSean became noticeably intoxicated, was unable to walk without help, cried, and vomited. CP at 36-39; 1 VRP at 35-36, 60-62. When Duncan checked on her during the night, she was unable to form complete sentences. 1 VRP at 36-37.

¶5 When DeSean awoke the next morning, she felt that her knees and back were bruised, she had a lump on her head, and her vagina was sore. CP at 4, 28; 1 VRP at 65. She could not remember much of what happened after consuming her third drink. 1 VRP at 69-70. DeSean confronted Sanger, who equivocated about having sex with her. Id. at 65-66; CP at 97.

¶6 DeSean later asked Duncan to take her to the hospital, where she underwent a sexual assault examination and an interview with a police detective. CP at 26-30; 1 VRP at 67-68. The district attorney's office in Nevada did not pursue charges against Sanger due to insufficient evidence. CP at 35; 1 VRP at 96-98.

Procedure

¶7 When DeSean returned to Washington, she filed a SAPO petition alleging nonconsensual sexual penetration by Sanger.¹ CP at 1-6. Sanger submitted a statement in response that DeSean gave verbal consent and was coherent the entire time. Id. at 7-23.

¶8 At the evidentiary hearing, DeSean testified that she was very intoxicated that evening but had flashbacks and remembered saying no to Sanger multiple times. 1 VRP at 61-65. She could not remember having sex with Sanger; thus, she argued she lacked capacity to consent to sex due to intoxication. Id. at 117.

¶9 Sanger testified that everyone was drunk, he did not do anything against DeSean's will, and he thought DeSean wanted to have sex. Id. at 114-15. Relying on Nelson , 197 Wash. App. 441, 387 P.3d 1158, he argued the SAPOA should be read in harmony with the criminal code, which would permit him to raise the defense that he reasonably believed DeSean had capacity to consent. 1 VRP at 122-23.

¶10 The trial court rejected Sanger's argument, found that DeSean lacked capacity to consent due to intoxication, and issued a one year SAPO. CP at 120-27.

¶11 Sanger appealed, arguing that when a SAPO petitioner alleges lack of capacity, the trial court must consider whether the respondent reasonably believed the petitioner was not incapacitated—a defense available in sex offense prosecutions.²

¶12 While the appeal was pending, the legislature repealed chapter 7.90 RCW and enacted chapter 7.105 RCW, which consolidated civil protection orders into one chapter. FINAL B. REP. ON ENGROSSED SECOND SUBSTITUTE H.B. 1320, at 2, 67th Leg., Reg. Sess. (Wash. 2021). While the previous statute did not define "consent," the new statute does, defining it as "actual words or conduct indicating freely given agreement to ... sexual contact." RCW 7.105.010(5). It also specifies that "[c]onsent cannot be freely given when a person does not have capacity due to disability, intoxication, or age." Id.

¶13 Months after chapter 7.105 RCW went into effect, the Court of Appeals reversed DeSean's SAPO, holding that the trial court erred in refusing to consider Sanger's defense that he reasonably believed DeSean had capacity to consent. DeSean v. Sanger , 23 Wash. App. 2d 461, 468, 516 P.3d 434 (2022). The court reasoned that under Nelson , the SAPOA should be read in harmony with the sex offenses chapter of the criminal code. Id. at 473-76, 516 P.3d 434. Because SAPOs are " ‘intended to provide a civil protective remedy to all rape victims recognized under criminal law,’ " the court held that an affirmative defense available to criminal defendants is also available to SAPO respondents. Id. at 476, 516 P.3d 434 (quoting Nelson , 197 Wash. App. at 456, 387 P.3d 1158 ).

¶14 DeSean sought our review, which was granted.³ DeSean v. Sanger , 200 Wash.2d 1026, 523 P.3d 1184 (2023).

ISSUE

¶15 Is a respondent to a SAPO based on nonconsensual sexual penetration entitled to present the affirmative defense that they reasonably believed the petitioner had capacity to consent?

ANALYSIS

¶16 The SAPOA allows victims of sexual assault to petition for a protection order against future interactions with their assailant. Former RCW 7.90.090(2) (2019). A court issues a protection order if it finds by a preponderance of the evidence that the petitioner has been subjected to "nonconsensual sexual conduct or nonconsensual sexual penetration" by the respondent. Former RCW 7.90.090(1)(a).

¶17 Although we generally review a trial court's decision to grant or deny a protection order for abuse of discretion, see Rodriguez v. Zavala , 188 Wash.2d 586, 590, 398 P.3d 1071 (2017), this case requires us to determine whether the SAPOA permits respondents to present affirmative defenses. This presents a question of statutory interpretation, which we review de novo. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002).

¶18 We note that former chapter 7.90 RCW (2019) was in effect when DeSean filed her petition, so we interpret that statute to resolve this case. The new SAPOA, chapter 7.105 RCW, consolidates the SAPOA with other civil protection orders and adds several definitions. It does not change the basic procedures or requirements. Because chapter 7.105 RCW will govern any future proceedings, we reference and cite that statute to explain our analysis and provide guidance on remand.

¶19 The goal of statutory interpretation is to give effect to the legislature's intentions. Campbell & Gwinn , 146 Wash.2d at 9-10, 43 P.3d 4. We begin with the assumption that the legislature means exactly what it says. State v. Delgado , 148 Wash.2d 723, 727, 63 P.3d 792 (2003). Thus, where possible, we derive meaning from the plain language of the statute, considering the text of the provision, the context in which it is found, related provisions, and the statutory scheme as a whole. State v. Ervin , 169 Wash.2d 815, 820, 239 P.3d 354 (2010). "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.’ " Id. (quoting Christensen v. Ellsworth , 162 Wash.2d 365, 373, 173 P.3d 228 (2007) ).

A. Criminal Affirmative Defenses Are Not Available under the SAPOA

¶20 The parties agree that neither the former chapter 7.90 RCW nor chapter 7.105 RCW explicitly mention affirmative defenses. DeSean asserts that the statutes are unambiguous and do not permit affirmative defenses. We agree.

¶21 First, allowing SAPO respondents to raise affirmative defenses contradicts the principle that the legislature means what it says. We presume the absence of an affirmative defense was intentional, and we will not add words or clauses to an unambiguous statute when the legislature has chosen not to. See Delgado , 148 Wash.2d at 727-29, 63 P.3d 792.

¶22 Second, the SAPOA provides a civil remedy to victims and functions independently from criminal proceedings. In...