Carmella (right) and her lawyer, Rachel Johnson
Major victory in the Washington Supreme Court for one woman and for all victims of sexual assault
In August 2020, Carmella, a 22-year-old college student, embarked on her first solo trip amidst the chaos of the COVID-19 pandemic. Her plan was to visit a friend in Nevada. But the events that followed changed Carmella’s life and led to a legal case that lasted more than three years as Carmella and her Northwest Justice Project (NJP) attorneys pursued a Sexual Assault Protection Order (SAPO) against a man that sexually assaulted her while she was incapacitated from alcohol intoxication.
The case, Carmella DeSean v. Isaiah Sanger, ultimately reached the Washington State Supreme Court where it came to define key legal issues regarding the rights of a sexual assault victim’s to protection from an assailant.
The Assault
Carmella's visit to Nevada was supposed to be a fun get together with her friend. Instead, it turned into a nightmare. Her friend had invited another person to join them. Someone Carmella did not know. The acquaintance raped Carmella while she incapacitated due to alcohol intoxication. She woke up the next morning with little memory of the prior night. “I felt like I was dead. I was in so much pain. I called my mom. I was bruised. I was in shock,” she recalls.
Two days later, while still in Nevada, Carmella got up the strength to report the rape – which turned out to be a traumatic ordeal in itself. She was forced to wait for hours alone in a small room. When the detective came in, "I felt like I was being interrogated," she says. The inadequacies of the legal system meant to protect her were glaring.
Navigating the Legal Maze
After returning home to Washington, Carmella found out that the perpetrator lived just twenty minutes from her parents’ house. Terrified, she sought a Sexual Assault Protection Order (SAPO) against him. SAPOs are granted under Washington State civil law, to prevent an assailant from having contact with the victim.
The process proved daunting after she petitioned the court for a protection order. Carmella received a temporary SAPO – but Sanger challenged it. He got a lawyer and started serving her with court papers. "I had huge piles of paper scattered over the floor," she remembers. It was then that she connected with NJP. Her attorney, Rachel Johnson became her advocate and, in Carmella’s words, "Once Rachel took my binder of documents, I felt such relief."
As the case made its way through the courts and Carmella waited for an evidentiary hearing on her petition, she struggled to complete her college education. She met with a trauma response team at her college. She went to multiple doctors, got therapy and help from a concussion specialist. “I dropped my course load down to half time, Carmella says. “I changed my career path. I had been pursuing a bachelor’s degree in physical therapy, but the assault made me feel like I couldn’t touch people, so I changed majors to public health. I had to learn how to navigate life again.”
The Misuse of Affirmative Defense
In court, Sanger's lawyer argued that Sanger reasonably believed Carmella had the capacity to consent. He drew this defense from criminal law, where it is the affirmative defense of “reasonable belief”.
Rachel and Carmella fiercely contested this, arguing that this “affirmative defense” was designed for criminal rape cases where the perpetrator faces potentially drastic punishment and had no place in a civil law case aimed at protecting victims. Carmella was only asking that Sanger not be allowed to contact her or go near her.
“The legislature specifically omitted this affirmative defense from SAPO statutes,” Rachel points out, highlighting the defense’s misapplication of the law. . Furthermore, Carmella was clearly incapacitated by alcohol at the time of the assault: she was observed stumbling, crying, vomiting, and eventually found in an incoherent state.
Carmella also recalled the ordeal she suffered when Sanger’s lawyer “said things about me that weren’t true. They tried to make it seem like I was ‘experiencing Vegas,’ like it was a party of the three of us. But it wasn’t.”
The court sided with Carmella, granting her a one-year SAPO.
But the fight was far from over. Sanger escalated the case to the Court of Appeals.
Appeals always present the possibility of changing laws that affect people statewide.
If Sanger’s lawyer was successful with their argument affirmative defense of “reasonable belief” it could have serious implications for other survivors of sexual assault. Because of the high stakes, NJP assembles teams to handle appeals. In Carmella’s case, Rachel was joined by Margaret MacRae, an attorney from NJP’s Spokane office.
The Court of Appeals sided with Sanger and voided the SAPO, this even though the Legislature had amended the law to make it even more protective of sexual assault victims.
“The decision was shocking,” Rachel says. It put the burden on survivors who argued they were incapacitated during the assault with having to prove the perpetrator understood he was causing harm—something that could be a difficult if not impossible, especially if the survivor was incapacitated and couldn't remember details. The decision was a huge setback for victim rights.
The NJP team discussed the impact of the decision with Carmella. She had a choice: whether to let the Court of Appeals decision stand or try to undo it by asking the Washington Supreme Court to hear the case. Carmella’s determination remained unshaken. "The perpetrator needed to know that you can’t just make something you did go away," she asserts.
The Supreme Court Hearing
NJP petitioned the Supreme Court on Carmella’s behalf. The Court agreed to take the case which required meticulous and rigorous preparation by a now larger team. Rachel and Carmella worked tirelessly. Rachel focused her legal strategy on the broader implications for the rights of all victims of rape and sexual assault. “[T]his Court decision would apply to every SAPO case when a petitioner [the victim] pleads that they were incapacitated. And incapacity can be based on a number of things: disability, intoxication, age,” Rachel explains, emphasizing the strategic approach to their argument.
Rachel also prepared to argue that Washington’s sexual assault statute favors protections for victims regardless of the perpetrator’s intent. The NJP legal team saw this as crucial, because the affirmative defense burdened victims with having to prove the respondents’ intent.
During the hearing, “I was shaking the whole time,” Carmella says. But she drew strength from the united effort behind her. It was at the hearing that Carmella first saw the full team of lawyers working on her behalf. “Seeing the team gave me a sense of purpose: they cared and they were all working to make sure I get justice,” she recalls.
At the hearing, the Court’s questions to both sides made clear the Justices understood the issues raised by Carmella’s case. The questions were challenging but allowed Rachel to address the problems with the Court of Appeals decision. Rachel and the team felt hopeful.
A Critical Victory for Survivors
The Supreme Court issued its decision on October 5, 2023, more than three years after Carmella was assaulted during her vacation – and it was a big win for sexual assault survivors in Washington State!
The Court ruled that SAPO respondents are not entitled to present a criminal affirmative defense. The Court went further and ruled that a petitioner seeking a SAPO based on nonconsensual sexual penetration does not have to prove the respondent’s intent.
The Court’s opinion fully agreed with the analysis in NJP’s briefing. The team was gratified, and no one more than Carmella and Rachel who had endured a hard fought and lengthy court process.
"After I understood that we had won, the constant pain I had felt in my chest for months finally went away," Carmella recalls.
Read the decision here. Carmella's case attracted the support of organizations across the state, several of which filed a “Friend of the Court,” brief that you can read here.
Looking Ahead
Carmella DeSean v. Isaiah Sanger set a precedent that will affect how sexual assault victims are protected under civil law in Washington State. Rachel highlights that the ruling reinforces the notion that victims deserve protection, irrespective of the perpetrator's intent or belief about consent.
“I’m grateful to Carmella for putting her trust in us and for her willingness to take the case all the way to the Supreme Court,” says Rachel. “We knew that it would have a lasting impact, and because of Carmella, a lot of people seeking SAPOs will receive protection when they may not have before.”
Carmella is also looking ahead. While still in school, she did an internship with the college Center for Gender Equity. There, she realized that other women had similar experiences to hers: “They were suffering and not getting the help they needed,” she says. So Carmella learned program design, and designed a college program for sexual assault services. “I want to support people the way I should have been supported from the very beginning.” Going forward, her goal is to continue to advocate for others.
“Thinking about all that has happened, I can’t really tell you how I did this, I just knew I needed to feel safe,” she says.
Carmella's fight achieved more than justice for herself, it also strengthened legal protections for all. Victims of sexual assault and their lawyers are already citing the case as they fight for their rights under the Sexual Assault Protection Order laws.