There are few topics as loaded in the American consciousness right now as the crime of rape. The Department of Education launched a massive investigation into the way that universities and colleges handle rape allegations, and hashtags like #YesAllWomen and #BeenRapedNeverReported have led to raw, powerful discussions on social media. However, one of the most immediate issues when it comes to dealing with rape in this nation is the complicated way in which we prosecute it. The Washington State Supreme Court just made a ruling that sheds light into the difficulty that comes with trying a rape case.

There are obviously a lot of moving parts when it comes to rape prosecution — social pressures, lack of reporting, and institutionalized victim-blaming to name just a few. All of these are essential factors that affect every step of a rape prosecution, and that needs to be kept in mind. But on the most basic level, prosecuting rape is complicated because of one simple question that we still haven’t figured out: who needs to prove what?

Think of a murder case. The prosecution has to prove that the defendant murdered the victim. Because of the nature of that crime, there’s no paranoia about false accusations the way there is with a rape case. Very few people argue about what the victim was wearing, or whether they invited someone over, or whether they were drinking matter at all. There’s no claim that the victim didn’t make it clear enough that they didn’t want to be murdered. There’s no real consent argument to make, except for possibly in a doctor-assisted suicide case, but those are rare outliers, not a normal consideration. We as a people know that being murdered is horrible, and the person who commits the murder is in the wrong. In order to make sure that the right person receives justice,however, affirmative defenses do exist — the most well-known probably being self-defense or insanity. This is not to say that murder cases are straightforward, but rather that the idea of “murder” and how to deal with it in a court is significantly more understood and accepted.

Compare that to a rape case. Like I said, there are all the other issues to contend with first — lack of investigation, lack of reporting, intense cultural shame. For all of those reasons, and many others, the Rape Abuse and Incest National Network (RAINN) estimates that for every 100 rapes, only 46 are reported to the police, and only nine of those even get a day in court. Those abysmal statistics aside, when the case makes it to court there are even more compounded issues.

One of the big problems that we can’t seem to move past is the mere concept that rape can involve an act that in another context is not a crime. It’s different than other violent crimes in that way; no one can make that argument about murder or robbery. The inability to grasp that concept is what has led to national paranoia over false accusations and a perverted fascination about the actions of the victim.

And that brings us to the prosecution of rape — consent is so hard to define and prove that it makes even the ability to prosecute rape messy. A recent case in Washington highlights the issue. The State Supreme Court overturned a ruling that placed the burden on the defendant to prove consent in a rape case. This was a 1975 decision that made it so that the prosecution didn’t have to focus so much on proving there was a lack of consent, but rather the defendant had to show that there was consent. This protected the victim from unfair and inappropriate scrutiny. As Justice Susan Owens put it in her dissent:

In 1975, the legislature took an important step toward justice for rape victims when it modified the laws to focus on the conduct of the perpetrator and not the victim…. Not only does the majority’s decision invalidate years of work undertaken to properly refocus our rape law, but it also has serious implications for victims of an already underreported type of crime.

A move toward providing the most just outcomes whenever possible should be applauded. But within the context of how difficult it already is to prove a rape case and the horrible way our society usually deals with rape, it’s tough to imagine that this decision truly did that. There’s a lot that needs to happen to ensure that our justice system fairly deals with rape and sexual assault, and to be fair a lot of it, such as working to remove the stigma and societal judgment about rape, isn’t even really possible for the judiciary to do. That being said, this step backward in Washington has a lot of potential to be dangerous. There’s no perfect answer yet for how to best prosecute rape, but Washington’s step backward can’t be it.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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