Washington Supreme Court rules on ‘sleep sex’ defense

A woman who claimed she was asleep when she had sex with an underage boy will have to prove that defense at trial.

The state Supreme Court ruled that Lindy Deer presented an “affirmative defense,” meaning the burden of proof does not fall on the prosecution.

“We will not have the burden of proving that she was awake,” said King County Deputy Prosecutor Andrea Vitalich. “She will have the burden of proving, by preponderance, that she was asleep when these acts occurred.”

Prosecutors claim Deer had sex with a 15-year-old boy on multiple occasions in 2006. She was 52 at the time.

In 2009, a jury convicted her on three-counts of child rape, but the conviction was overturned due to an error in charging documents.

Prosecutors plan to try the case again, but asked the state Supreme Court to rule on who should have the burden of proof if Deer were to present her “sleep sex” defense at trial.

Seven of the court’s nine justices sided with the prosecution and said the burden should be on the defense.

Lila Silverstein, an attorney with the Washington Appellate Project, represented Deer on appeal. She calls the state Supreme Court decision “dangerous,” and said it violates due process.

She pointed to a more common scenario, such as a woman who is “drugged,” then raped by an underage boy.

“The question in this case is, ‘Who bears the burden of proving which one of those people is telling the truth? Which one of those people did commit the act?'” she said. “Our position is it has to be the state that bears that burden.”