The Washington Supreme Court has held that the prosecution need not prove volition in a child rape case. It therefore reversed the Washington Court of Appeals decision in State v. Lindy Deer, 244 P.3d 965 (2010). The supreme court’s decision appears at 287 P.3d 539 (2012).
Deer, a 52-year-old woman, was found to have had sexual intercourse with a 15-year-old boy. She contended she had been asleep at the time. The court of appeals reversed her conviction because the prosecutor had not been required to prove volition beyond a reasonable doubt. Volition, in this context, would mean that the intercourse came about, at least in part, through Deer’s exercise of her will. Sleep generally prevents volition.
The supreme court held that the prosecution need not prove volition. Rather, it held, lack of volition is an affirmative defense. Thus a defendant must prove lack of volition by a preponderance of the evidence, that is, more likely than not.