State v. Deer

Stephens J.

¶1 Lindy Deer was convicted of third degree rape of a child after having sexual intercourse with a 15-year-old boy on multiple occasions. Deer claims that she was asleep during several acts of intercourse and *728cannot be guilty of rape because she did not act with volition. We hold that Deer’s claimed lack of volition amounts to an affirmative defense, for which the defendant bears the burden of proof by a preponderance of the evidence. The trial court correctly refused Deer’s request to instruct the jury that the State must prove beyond a reasonable doubt that she was awake during…