State v. Deer, 287 P.3d 539

Background

Deer, 52, was convicted of third-degree rape of a child for sexual intercourse with a 15-year-old on multiple occasions.
Deer argued she was asleep during some acts and thus not acting with volition.
Trial court instructed jury that sleep/ lack of knowledge or consent could negate guilt by preponderance of the evidence; defense sought instructions on volition beyond reasonable doubt.
Jury convicted on three counts; Court of Appeals reversed on charging error and, on remand, addressed the volition issue.
Washington Supreme Court held that lack of volition is an affirmative defense, and the State need not prove volition beyond a reasonable doubt.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is volition an element the State must prove beyond reasonable doubt?	Deer argues volition is an element the State must disprove beyond doubt.	Deer contends lack of volition negates the offense and shifts burden to State.	No; volition is not an element; it is an affirmative defense borne by Deer.
Who bears the burden of proof for a sleep-related defense in strict-liability child rape?	Deer proposes the State must prove volition beyond reasonable doubt once sleep is raised.	Deer bears burden to prove lack of volition by preponderance.	Burden rests on the defendant to prove lack of volition by a preponderance.
Does the strict-liability nature of RCW 9A.44.079(1) negate volition as an element?	The act is strict liability; no mens rea required, so volition should not be an element.	Volition is part of actus reus and still required to show conduct occurred.	Volition is not an element; still an affirmative defense; burden on Deer.
Should Eaton control whether volition must be disproved by the State?	Eaton frames a different context; not controlling here.	Eaton supports requiring State to disprove volition in similar contexts.	Eaton does not constrain the allocation here; volition remains an affirmative defense with defendant burden.
Is Deer entitled to an instruction treating lack of volition like unwitting possession or involuntary intoxication?	No, because unwitting possession and involuntary intoxication are different contexts.	Yes, as a parallel defense to mitigate harshness of strict liability.	Not required; defense is affirmative and burdensome on defendant; instruction rejection affirmed.

Key Cases Cited

State v. Eaton, 168 Wn.2d 476 (2010) (confirms actus reus includes volition; precedential for volition in actus reus)
State v. Bradshaw, 152 Wn.2d 528 (2004) (unwitting possession; affirms defense burden on defendant in strict liability context)
State v. Utter, 4 Wn. App. 137 (1971) (recognizes automatism/absence of consciousness as defense framework)
State v. Lively, 130 Wn.2d 1 (1996) (due process and burden-shifting for defenses negating elements)
State v. Swagerty, 60 Wn. App. 830 (1991) (recognizes involuntary intoxication as a potential defense affecting mental state)