IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES DUVALL, Respondent,

REBECCA NELSON, Appellant. No. 73416-4-1

DIVISION ONE

PUBLISHED OPINION
FILED: January 3, 2017 CC

Mann, J. — In 2006, the Washington State Legislature created the Sexual Assault Protection OrderAct (SAPOA), chapter7.90 RCW, with the intent ofcreating a 

### civil remedy allowing a victim ofsexual assault to obtain a protection order against future interactions with their assailant. In orderto obtain a sexual assault protection order, the petitioner must allege, and the court mustfind, that the sexual conduct or 

### penetration was "nonconsensual"—in otherwords, thatthe petitionerdid not give consent. "Nonconsensual" is defined by SAPOA to mean "a lack offreely given agreement." RCW 7.90.010(1).No. 73416-4-1/2
We are asked in this case to decide, (1) whether the ability to consent 

### necessarily requires the petitionerto have the capacity to consent or freely give agreement, and (2) where there is evidence ofexcessive alcohol consumption, or other impairment, whether the trial court has an obligation to determine ifthe petitioner had 

### the capacity to consent. We answer both questions inthe affirmative. This case concerns two freshmen students atthe University ofWashington 

### during the evening and early morning hours ofJanuary 9 to 10, 2015. Petitioner Rebecca Nelson attended several fraternity parties during the evening where she 

### consumed a significant quantity ofalcohol. Nelson did not remember how she got back to her dormitory, but had a vague memory ofthe respondent James Duvall being in her 

### dormitory room in the early morning hours. The next morning, believing she had been 

### raped by Duvall, Nelson alerted the campus police and ultimatelysought a sexual assault protection order. 

### During an evidentiary hearing, Nelson testified that she had no memory of the 

### night and did notrememberconsenting to sex. Duvall agreed thatthe two had engaged in sexual intercourse, buttestified that Nelson had given her verbal agreement. Because Nelson could not rememberthe specifics ofthe night, and the only testimony
was that of Duvall, the trial courtfound that there was consent and denied the sexual assault protection order. 

### The trial court erred as a matter of law in failing to consider and find, based on the evidence, whether, as a threshold matter, Nelson had the capacity to give consent. We reverse and remand for entry offindings.No. 73416-4-1/3

FACTS 

### Rebecca Nelson and James Duvallentered the University ofWashington as 

### freshmen in the fall of 2014. Nelson and Duvall resided in the same dormitory. They
were acquainted through a mutual friend, had met previously in social settings, but had
never dated or spent time alone. On the evening ofJanuary 9, 2015, Nelson worked a closing shift at Starbucks 

### then met up withfriends to celebrate a friend's birthday and attended a party at a local fraternity. One of Nelson's friends brought a half-literwater bottle filled with vodka. 

### While all ofherfriends initiallydrank from the bottle, Nelson ended up holding onto and drinking from itthrough the night. Once at the fraternity party, Nelson drank three or 

### four shots ofalcohol from the bar along with ajuice drink she believed contained alcohol. She continued to drink vodka from the water bottle finishing halfofthe bottle by midnight. After midnight, Nelson moved to another house party where she continued to drink from the water bottle ofvodka. Nelson testified that she drank much more than she would typically drink, that she became heavily intoxicated, and began to lose her
memory. Nelson recalled "Snapchatting" with friends, but didn't rememberthe contents 

### otherthan one of her highschool friends commenting that she looked drunk.1 Nelson's testimony was supported by her boyfriend who was not with her that evening. As he
described: The evening ofJanuary 9th, Iwas going through my fraternity's initiation process and was occupied at my chapter house . . . until around 1Clerk's Papers (CP) at 8. Snapchat is a cell phone app similar to text messaging exceptthat photos and texts sentthrough Snapchatdisappear once they are seen by the recipient and are not preserved.No. 73416-4-1/4
4 AM on the 10th.
. . . Upon finishing being initiated Iwas able to check my phone again and noticed many snap chat messages from Becca. As I went through them almost all ofthem were incoherent, Icould not pick out more than one word per picture. Inthe background Isaw Becca with 

### some ofherfriends that Irecognized and saw what appeared to be two separate dorm rooms throughout the dozen or so snapchats. Her last message was from 2:06 AM. Having interacted with Becca drunk, Iknew that when she had consumed a lot ofalcohol hertext messages became nearly as unreadable as the snapchats, and because her snapchats were much worse than anything she had sent me before Igot worried and called her, as Idid not know she was going out that night and Iwas worried about her. Ididn't connect and left her a voicemail, asking ifshe was ok andjust 

### checking in. After that Ifell asleep.[2] Nelson vaguely remembered leaving the second party and heading to a third. While she didn't remember how she got there, she remembered ending up at herfriend, Shirley Chen's, dormitory room. 

### According to Chen, at around 1:00 or 2:00 a.m., Nelson told Chen she was going to walk back to her dormitory room—about 10 or 15 minutes away on the other side of campus. Chen testified that she insisted on walking Nelson backto her dormitory "since [Nelson] had been intoxicated and the conditions outside were nottoo ideal. Itwas dark out, a little rainy, and her dorm was located across campus." Chen testified that Nelson 

### said she was fine. Although Chen was reluctant, because she felt Nelson "was not 

### completely sober," Chen decided to let Nelson walk back to her dormitory alone. Chen testified that she had been drinking with Nelson several times before, and found Nelson to be "a very laidback and relaxed person and that seems to carry on into herdrunken 

### state so it is a bitdifficulttojudge how intoxicated she really is." Before she left, Chen

2 CP at 35-36. -4-No. 73416-4-1/5
told Nelson to text as soon as she got backto her own dormitory. Nelson never sent Chen a text message. 

### Nelson did not remember getting backto her dormitory or entering her room. She believes she ran because itwas cold and at some point she fell down, ripped her jeans, and bruised her knee. Nelson testified thatthe only thing she remembered the 

### rest ofthe night was "feeling pain and then like Ithink James saying 'I need to get rid of 

### this condom.'" She recalled waking up the next morning and feeling pain in her vagina. She noticed her pajama shorts were inside out and thatthere was blood on the sheets. Laterthat morning, Nelson told her boyfriend that she thought she had been raped. 

### She then told her parents. With her parents' assistance, she alerted the University of Washington Police who took a statement and collected evidence. She then checked into Harborview Medical Center for a sexual assault exam. Duvall testified that he communicated with Nelson throughout the night. Duvall testified that around 1 a.m. he sent Nelson a Snapchat message asking her where she
was and Nelson responded that she was with some ofherfriends. He "asked herwhen she was coming back" and "ifshe wanted to hang out" when she got backto the dormitory. Nelson reportedly said yes and that her roommate was notthere. Duvall asked herto send him a Snapchatwhen she got back to the dorm. Duvall testified that around 1:30 or 2:00 a.m., Nelson sent him a Snapchat saying she was back in her room. Duvall sent her a message that he would come knock on her door. When he arrived and knocked she said he could come in. When Duvall 

### walked into the room, he hugged Nelson and they started talking while sitting down on the bed. Duvall testified that Nelson seemed drunk, but not incoherent, she was talking
-5-No. 73416-4-1/6 normally, was responsive to questions, and was not slurring herwords. He testified that when he leaned in to kiss her, she was responsive and kissed him back and when he asked her ifshe wanted to have sex she said "[y]es." Duvall admitted that he had sexual intercourse with Nelson. After intercourse, Duvall testified that he and Nelson talked for 10 to 15 minutes and that he then turned offher light, gave Nelson her cell phone, and left. 

### Nelson testified that after returning to school she was "terrified forthe nextfew days until Iheard James had been moved out ofAlder and thatthere was a no contact 

### order inplace." She testified becoming extremely paranoid of running into Duvalland
was afraid of running into him on campus. After learning that neitherthe prosecutor nor 

### University ofWashington were going to take action against Duvall, on March 18, 2015, Nelson filed a petition for a sexual assault protection order in KingCounty Superior 

### Court. She received a temporary sexual assault protection order and notice of hearing. On March 31, 2015, the parties appeared, through counsel, before Pro Tempore Judge Richard Bathum for the return hearing. 

### At the start ofhearing, the court noted that Nelson had submitted a "very thick 

### petition and declarations" and then asked if"the parties thinkIneed to read that?" Nelson responded in the affirmative. The court agreed to read the materials but informed Nelson thatthe petition may not be given much weight as itwas likely full of 

### hearsay. Nelson reiterated that "the Evidence Rules need not apply inthese matters, 

### hearsay is generallyconsidered admissible." The courtresponded that "the Court is 

### going to hear testimonyfrom both sides, and wewill take—anydocuments you want the Court to considerwill be marked, admitted and objected to, ifnecessary, and the Court
-6-No. 73416-4-1/7


### will make a decision as to whether or not any documents you have are admissible on that basis." The court heard testimony from Nelson, Nelson's father, and Duvall. 

### After Nelson presented her case, Duvall moved to dismiss arguing that because Nelson could not rememberthe events on January 9 to 10, there was no evidence of a 

### lack ofconsent. Nelson's counsel responded, explaining: [NELSON'S COUNSEL]: . . . [n]onconsual means lack offreely given consent. Myclient's entire case, including hertestimony, which is evidence, goes to the fact thatthere was a lack offreely given consent in this matter. THE COURT: What evidence do you have that shows that she did not consent? [NELSON'S COUNSEL]: Her level ofintoxication alone, your Honor. THE COURT: Okay. That's it? That's the only thing? [NELSON'S COUNSEL]: She blacked—her own testimony shows that 

### she blacked outthat night from the amount ofalcohol thatwas consumed. Byher estimate, overthe course ofthe night, somewhere between seven and ten shots, which are one and a halfounces each, ofhard alcohol with mixers, for a young women ofher stature and age is well beyond the legal limitand clearly led to memory loss. That kind ofintoxication, our argument is, is the basis for the incapacity to give consent. 

### Imean by [opposing] counsel's argument, you know, earlier, without expert testimony, the Respondent could have sex with someone in a coma and that would be fine, because they can'ttestify thatthey had any memory of ithappening. 

### The very purpose ofthese sexual assault protection orders, your Honor, in a civil case with the preponderance ofevidence standard is to 

### provide an avenue for sexual assault victims to get some safety and peace of mind. They're specifically designed when criminal cases don't go 

### through, when other options for safety don't apply.[3] The court denied the motion to dismiss. 

### After Duvall presented his case and closing arguments, the court issued its oral ruling:

3Report ofProceedings (RP) (March 31, 2015) at 63-64. -7-No. 73416-4-1/8


### The difficulty in this case is that your client [Nelson] does not 

### remember. Your client does not help us with a lot ofwhat exactly happened in the room. 

### It could have been consent or itmaybe wasn't consent. It's very, very difficultfrom the testimony that she gave to create any kind ofpicture as to what happened in this case. 

### On the other hand, the defendant does give us some testimony in connection with this case. There is agreement that both had been drinking. There is Ithink agreement that she drank too much. But the issue here is whether or not this was in effect consensual or 

### not consensual, and because the only testimony that the Court really has that goes to that is from the defendant inthis case, the Court finds that there was consent, at least at one point in time. 

### Waking up the next morning after a night of drinking and maybe not a memory—I don't know what happened there as to why she didn'ttestify regarding the specific facts ofthe case. But the Court cannotfind infavor ofthe Petitioner in this case and dismisses the case.[4] The court continued, however: There is anotherthing that anytime Iget the opportunity to talk to kids aboutthis which is alcohol. And here inthe courthouse we see every kind ofdrug there is. You name it,we see it. What's still king? Alcohol is still king. InAlcoholics Anonymous 

### they say cunning, powerful, baffling. Alcohol's not good, especially when 

### you're a good-looking lady running around on campus.[5] The court denied issuance ofthe sexual assault protection order checking the 

### box withthe form language: "Apreponderance ofthe evidence has not established that 

### there has been nonconsensual sexual conduct or nonconsensual sexual penetration."6
ANALYSIS 

### In2006, the Washington State Legislature created the Sexual Assault Protection OrderAct (SAPOA), chapter7.90 RCW, with the intent ofcreating a civilremedy allowing a victim of sexual assaultto obtain a protection order againstfuture interactions

4RP (March 31, 2015) at 87-89 (emphasis added). 5RP (March 31, 2015) at 89-90. 6 CP at 49-50. -8-No. 73416-4-1/9
with their assailant. RCW 7.90.005. A petition for a sexual assault protection order may 

### be filed by any victim of "nonconsensual sexual conduct or nonconsensual sexual 

### penetration." RCW7.90.030(1 )(a).7 The petitioner must allege by affidavitunderoath "the existence of nonconsensual sexual conduct or nonconsensual sexual penetration." RCW 7.90.020(1). After a hearing, 

### Ifthe courtfinds by a preponderance ofthe evidence that the petitioner has been a victim of nonconsensual sexual conduct or 

### nonconsensual sexual penetration by the respondent, the court shall issue a sexual assault protection order. 

### RCW 7.90.090(1 )(a).8 We review the trial court's decision to grant or deny a protection orderfor abuse ofdiscretion and determine ifthe decision is manifestly unreasonable or exercised on 

### untenable grounds. In re Vulnerable Adult Petition for Knight, 178 Wn. App. 929, 936- 

### 37, 317 P.3d 1068 (2014). "A decision is based on untenable grounds or foruntenable
reasons ifthe trial court applies the wrong legal standard or relies on unsupported facts." Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d 583 (2010). While we 

### deferto the trial court on the persuasiveness ofthe evidence, witness credibility and 

### conflicting testimony, we reviewquestions of law de novo. Salas, 168 Wn.2d at 669. We reviewquestions of statutory interpretation de novo. Pham v. Corbett, 187Wn. App. 816, 831, 351 P.3d 214 (2015).

7SAPOA does not apply tovictims thatqualify for a domestic violenceorder ofprotection under chapter 26.50 RCW. 8The court may not deny the petition based, in whole orin part, on evidence that eitherthe 

### petitionerorrespondentwerevoluntarily intoxicated or thatthepetitionerengagedin limited consensual sexual touching. RCW 7.90.090(4). -9-No. 73416-4-1/10

A. 

### Inorderto obtain a sexual assault protection order, the petitioner must allege, and the court must find, that the sexual conduct or penetration was "nonconsensual"—in otherwords, thatthe petitioner did not give consent. "Nonconsensual" is defined by SAPOA to mean "a lack offreely given agreement." RCW 7.90.010(1). We are asked inthis case to decide, (1) whetherthe ability to freely give consent necessarily requires the petitioner have the capacity to consent or freely agree, and (2) where there is evidence ofexcessive alcohol or other impairment, the trial court has an obligation to determine and enter a finding of capacity. 

### Statutory interpretation begins with the plain meaning ofthe statute. Dep't of Ecology v. Campbell &Gwinn, LLC. 146 Wn.2d 1, 11, 43 P.3d 4 (2002). "It is an 

### axiom ofstatutory interpretation thatwhere a term is defined we will use that definition." United States v. Hoffman, 154 Wn.2d 730, 741, 116 P.3d 999 (2005). The court's 

### primary objective in interpreting a statute is to ascertain and carry out the legislature's intent. Lake v. Woodcreek Homeowners Ass'n. 169 Wn.2d 516, 526, 243 P.3d 1283 

### (2010). The court may "discern the plainmeaning ofnontechnical statutory terms from their dictionary definitions." State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). Even though SAPOAwas enacted in 2006, there is little case law considering its
use and interpretation. While other sections of the statute have been addressed and 

### interpreted by this court,9 no court has addressed whether "nonconsensual" or "a lack of
9See Roake v. Delman. 194 Wn. App. 442, 449-50, 377 P.3d 258, 262 (2016), addressing the SAPO Act's requirements for a petition, an ex-parte temporary protection order, and a final protection order. "Weconclude that the SAPO Act, by its plain language, requires that a petition include an -10-No. 73416-4-1/11 freely given agreement" necessarily means that the victim have the capacity to consent. 

### We believe that the ability to consentto sexual conduct or penetration, or to freely agree to sexual conduct or penetration, necessarily means that the individual giving consent 

### must have the mental capacity to consent.10 This interpretation is consistent with the dictionary definition of what it means to "freely" agree. Webster's defines "freely" as "of one's own accord; with freedom from 

### external control."11 Synonyms and related words include "voluntarily, willingly, 

### consciously, deliberately, intentionally, knowingly, wittingly."12 Considering this definition of "freely" the plain language would require the court to find that the victimwas acting of his/her own accord, free from external control, willingly, voluntarily, knowingly, and consciously. Being incapacitated due to intoxication, whether it be voluntary or involuntary, or due to mental illness, would necessarily have an adverse effect on a person's ability to actwith free will and oftheir own accord. 

### Further, indetermining legislative intent, the "preamble or statement of intent can be crucial to interpretation of a statute." Towle v. Dep't of Fish &Wildlife. 94 Wn. App. 196, 207, 971 P.2d 591 (1999). Increating the SAPOA, the legislature declared: Sexual assault is the most heinous crime against another person short ofmurder. Sexual assault inflicts humiliation, degradation, and terror 

### on victims. According to the FBI, a woman is raped every six minutes in the United States. Rape is recognized as the most underreported crime; 

### estimates suggestthat only one inseven rapes is reported to authorities. allegation that the respondent made specificstatements or actions giving rise to a reasonable fear of futuredangerous acts. However, the Act does not require that a petitioner prove this allegation to obtain a protection order." 10 Duvall agreed during oral argumentthat while the language is not in the statute, this interpretation "makes a certain amountofsense." 11 Merriam-WebsterOnline Dictionary, https://www.merriam-webster.com/dictionary/freely (last visited Dec. 23, 2016). 12 Merriam-WebsterOnlineThesaurus, https://www.merriam-webster.com/thesaurus/freelv (lastvisited Dec. 23, 2016) -11-No. 73416-4-1/12
Victims who do not reportthe crime still desire safety and protection from future interactions with the offender. Some cases in which the rape is reported are not prosecuted. Inthese situations, the victim should be able to seek a civilremedy requiring thatthe offender stay away from the victim. It is the intent ofthe legislature thatthe sexual assault protection 

### order created by this chapter be a remedy for victims who do not qualify for a domestic violence order of protection. RCW 7.90.005. This declaration makes clearthatthe legislature intended SAPOAto provide a broad civil remedy to protect victims of rape and sexual assault who either choose notto report the sexual assault or do report the assault butthe assault is not prosecuted. Because SAPOA is focused on sexual assault and rape, its terms should be read 

### in harmony with the "sex offenses" chapter ofthe Washington criminal code, chapter 9A.44 RCW. Hallauerv. Spectrum Properties, Inc., 143 Wn.2d 126, 146, 18 P.3d 540 

### (2001) (where statutes relate to the same subject matterthey must be construed 

### together). It is clearfrom the legislative declaration in SAPOA that the legislature considered chapter 9A.44 RCW when enacting SAPOA. Further, both statutes define "consent" and "nonconsensual" using the same language. Inthe criminal code, the term "consent" is defined to mean "that at the time of sexual intercourse or sexual contact 

### there are actual words or conduct indicating freely given agreementto have sexual intercourse or sexual contact." RCW 9A.44.010(7) (emphasis added). In SAPOA, the
term "nonconsensual" is defined to mean "a lack offreely given agreement." RCW 7.90.010(1) (emphasis added). 

### Underthe criminal code, a person is guilty ofrape inthe second degree, when 

### they engage in sexual intercourse with anotherperson "when the victim is incapable of consentby reason of being physically helpless ormentally incapacitated." RCW
-12-No. 73416-4-1/13 

### 9A.44.050(1 )(b). Mental incapacity is defined as a "condition existing at the time ofthe offense which prevents a person from understanding the nature or consequences ofthe act ofsexual intercourse whetherthat condition is produced by illness, defect, the influence of a substance orfrom some other cause." RCW 9A.44.010(4) (emphasis added). Thus, when the State can prove the victim was mentally incapacitated atthe 

### time ofthe act, "the victim's words or conduct indicating freely given agreementto have sexual intercourse will not excuse the defendant's conduct." State v. Lozano, 189 Wn. App. 117, 125, 356 P.3d 219 (2015), review denied, 184Wn.2d 1032, 364 P.3d 120 (2016). For criminal convictions, mental incapacity, including incapacity caused by the "influence of a substance" such as alcohol or drugs, may render a victim incapable of giving consent. In adopting SAPOA, the legislature was specifically concerned by the large percentage of rapes and sexual assaults that go unreported or unprosecuted each year. 

### RCW 7.90.005.13 As a result, SAPOA provides additional protection to sexual assault and rape victims, outside ofthe criminal process. RCW 7.90.005. Considering this legislative intent, it would be illogical to read SAPOA in a mannerthat ignores whether the victim has the capacity to consent and therefore deny a population of victims the protection of a civilremedy through a sexual assault protection order.

13 From 2006 to 2010, a greater percentage of victimizations perpetrated by someone the victim knew well (62 percent) went unreported to police, compared to victimizations committed by a stranger (51 percent). The statistics showed that "[f]rom 2006 to 2010, victimizations perpetrated by someone who was well known to the victim (62%)—a neighbor, coworker, patient, or teacher—or by someone with whom the victimwas casually acquainted (60%) were most likely to go unreported to police. . . . Among the unreported IPVvictimizations, 38 percentwent unreported because the victimwas afraid of reprisal or getting the offender in trouble." LynnLangton etal, U.S. Dep'tofJustice, Special Report: Victimizations Not Reportedto the Police, 2006-2012, at 6 (Aug. 2012), http://www.bjs.gov/content/pub/pdf/vnrp0610.pdf. Additionally 13 percentof rape or sexual assaultvictims stated they did not report because the police would not or could not help. Langton etal., at 4tbl.1. -13-No. 73416-4-1/14 

### We hold thatfor the purposes of reviewing a requestfor a sexual assault 

### protection order, mental incapacity, including incapacity caused by alcohol or drugs may make the sexual contact or sexual penetration nonconsensual. We conclude that 

### SAPOAwas intended to provide a civil protective remedy to all rape victims recognized under criminal law, without exclusion. Therefore, when deciding whetherto grant a 

### sexual assault protection order, SAPOA requires the trial court to considerallevidence that can demonstrate "nonconsensual sexual conduct or nonconsensual sexual 

### penetration" or a "lack of freely given agreement." This includes evidence that the victim lacked the mental capacity to consent at the time. While we disagree with 

### Nelson's argumentthat incapacity caused by alcohol consumption renders a victim incapable ofconsent "as a matter oflaw," such impairment, once demonstrated, 

### required furtherinquiry into the circumstances. Once a claim of"incapacity" is raised, or evidence of"incapacity" isprovided, the court must determine, on the record, whether the victim had the capacity to consent. B. 

### In this case, Nelson presented evidence to the trial court that she was highly intoxicated at the time of the sexual penetration and argued that her intoxicationwas the 

### basis for the incapacityto give consent. Thetrial courtfully agreed that Nelson "drank 

### toomuch" yetdetermined thatbecause she had nomemory, the only relevantevidence was the defendant's testimony regarding the conversation leading up to the act itself 

### and whether or not Nelson gave verbal consent. The court explained: "the issue here is whether or not this was ineffect consensual or not consensual. And because the only 

### testimonythat theCourt really has that goes to that isfrom the defendantin this case,
-14-No. 73416-4-1/15
the Court finds that there was consent, at least at one point intime." The trial court's decision failed to sufficiently consider Nelson's evidence that she lacked capacity to consent at the time ofthe sexual penetration. When the trial court fails to make necessary findings on ultimate issues of fact, or the decision rests on an improper interpretation ofthe law, "the appropriate course of 

### action is to remand to the trialjudge to apply the correct rule" and make and enterthe necessary findings offact and conclusions of law. Dreiling v. Jain, 151 Wn.2d 900, 907, 93 P.3d 861 (2004); Fed. Signal Corp. v. Safety Factors, Inc.. 125 Wn.2d 413, 422, 886 

### P.2d 172 (1994). We remand to the trial courtfor consideration of, and specific entry of 

### findings, based on the record, addressing whether Nelson had the capacity to give

consent. On remand, the trial court must considerwhether Nelson was incapable of consent due to mental incapacity. The court must considerwhether a "condition 

### existing at the time ofthe offense which prevents a person from understanding the 

### nature or consequences ofthe act ofsexual intercourse whetherthat condition is produced by illness, defect, the influence of a substance or from some othercause." RCW9A.44.010(4). Inthis case, this includes but is not limited to, (1) evidence that Nelson 

### consumed a significant quantity of alcohol throughoutthe evening and became highly intoxicated; (2) Nelson's memory started fading inand out to the point that she did not remember much ofthe evening; (3) Nelson's friend was concerned that she had been intoxicated and questioned her ability to walk home; (4) Nelson insisted on walking 

### home byherselfacross campus around 2 a.m. inJanuary—alone demonstrating she
-15-No. 73416-4-1/16 

### may not have meaningfully understood the consequences ofher actions; (5) Nelson apparently fell hard enough to ripherjeans and hurt her knee inthe process of running home but did not rememberthe fall; (6) Nelson's Snapchats were incoherent enough to 

### worry her boyfriend; and (7) Nelson neglected to followthrough on her promise to text her friend once she arrived at her dorm. 

### Afterconsidering all of this evidence, the trial court must determine whether Nelson carried her burden of proving "nonconsensual sexual penetration" and either grant or deny the sexual assault protection order.
II. 

### Nelson maintains thatthe trial court improperly based its denial ofthe sexual 

### assault protection order on Nelson's voluntarily intoxication in conflict with RCW 7.90.090(4)(b).14 We disagree. 

### Although the trial court erred inacknowledging that Nelson's intoxicationcaused her memory lapses instead ofconsidering whether Nelson had the capacity to consent to sexual conduct,15 the court's decision does not appear to be based on Nelson's 

### voluntary intoxication. The court interpreted SAPOA to require evidence ofnonconsent 

### by words or conduct at the time of the act. The court's denial appears to be based 

### solely on its beliefthatbecause Nelson had no memories of the night she failed to carry her burden to prove nonconsent. The court instead relied only on the testimony of

14 RCW 7.90.090(4)(b)states: "[djenial of a remedy may not be based, inwhole or in part, on evidence that: . . . The petitionerwas voluntarily intoxicated." 15 "Waking up the nextmorning after a nightofdrinking and maybe not a memory—I don'tknow what happened there as towhy she didn'ttestify regarding the specificfacts of the case." RP(March 31, 2015) at 88. "Alcohol's not good,especially when you'reagood-looking lady running around on campus. SoI'm notblaming anybodyforthis except totell you that that's anotherfactorin this case thatIthinkwas something that is unfortunate." RP (March 31, 2015) at 90. -16-No. 73416-4-1/17 

### Duvall. The trial court based its decision on the evidence and did notdeny the order because Nelson was voluntarily intoxicated.
III. 

### Nelson argues that the trial courterred inexcluding documents, including the police report, as inadmissible hearsay. While we agree thatthe trial court erred, the

error was harmless. 

### Hearsay evidence is generally inadmissible under the Washington Rules of Evidence in all actions and proceedings inWashington State courts. ER 1101. However, the Rules ofEvidence "need not be applied" in "[pjrotection orderproceedings under RCW 7.90." ER 1101(c)(3). Accordingly, "competentevidence sufficient to 

### supportthe trial court's decision to grant or deny a petition for a . . . protection order may contain hearsay or be wholly documentary." Blackmon v. Blackmon, 155 Wn. App. 715, 722, 230 P.3d 233 (2010); See also Gourlev v. Gourlev. 158 Wn.2d 460, 467, 145 P.3d 1185 (2006). Inthis case, the trial court failed to recognize that SAPOA proceedings fall within


### an exception to the evidence rules. The trial court uniformly held all ofthe evidence to the same hearsay rules required attrial without considering whether any ofthe evidence
was "competentevidence sufficientto support the trial court's decision to grant or deny 

### a petition." Blackmon. 155 Wn. App. at 722. We hold the trial court abused its discretion by repeatedly applying the wrong legal standard in determining the 

### admissibility ofhearsay, and its decision to completely disregard ER 1101(c)(3) and

-17-No. 73416-4-1/18 apply the rules ofevidence across the board is a view "that no reasonable person would take."16 However, an evidentiary errorwill not be reversed absent a showing that the
errorcaused prejudice. Aubin v. Barton. 123 Wn. App. 592, 608, 98 P.3d 126, 134 (2004). Nelson cites errorto the trial court's decision to exclude the police report, a corroboration of Nelson's own testimony, butfails to provide any argument as to how 

### the exclusion resulted inprejudice. Nelson also failed to preserve the reportfor review
on appeal, so this court cannot make a determination as to its relevance. While we hold that the trial court abused its discretion in automatically excluding all hearsay evidence, this error was harmless. IV. 

### Nelson argues briefly thatthe court's "[sjubstantive and procedural decisions raise due process concerns" citing to onlyone case and failing to cite to the record. "Passing treatment of an issue or lack ofreasoned argument is insufficient to merit 

### judicial consideration." Palmer v. Jensen. 81 Wn. App. 148, 153, 913 P.2d 413 (1996). We will notconsider an inadequately briefed argument. Norcon Builders. LLC v. GMP Homes VG. LLC. 161 Wn. App. 474, 486, 254 P.3d 835 (2011).

16 See Inre Dependency ofA.L.W.. 108 Wn. App. 664, 673, 32 P.3d 297, 301 (2001) (The trial courterredin holding that the lettersfrom the Leech Lake Band and the Minnesota ChippewaTribewere inadmissible hearsay becausethe rules of evidence do not apply to dependency review hearingsin juvenilecourt underER 1101(c)(3)). Here, Nelson's challengefocuses on thetrial court's determination that all offered hearsay evidence was inadmissible evidence. -18-No. 73416-4-1/19

CONCLUSION 

### We reverse and remand forfurther proceedings and the entry of findings. On remand, the trial court is to reconsiderthe existing record and determine whether 

### Nelson proved by a preponderance ofevidence that she lacked the mental capacityto consent at the time ofthe sexual penetration. Ifthe courtfinds that Nelson 

### demonstrated a lack ofmental capacity to consent at the time ofthe sexual penetration, the court should enterthe requested protection order. Ifthe courtfinds that Nelson 

### failed to prove that she lacked the mental capacity and failed to prove that sexual 

### penetration was nonconsensual, the court should deny the requested order.

*ma~

WE CONCUR: 

# n7^kcy; A<P U+~^x y

-19-