State v. Dejarlais

969 P.2d 90, 136 Wash. 2d 939, 1998 Wash. LEXIS 944
CourtWashington Supreme Court
DecidedDecember 24, 1998
DocketNo. 66213-4
StatusPublished
Cited by43 cases

This text of 969 P.2d 90 (State v. Dejarlais) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dejarlais, 969 P.2d 90, 136 Wash. 2d 939, 1998 Wash. LEXIS 944 (Wash. 1998).

Opinion

Dolliver, J.

Defendant Steven Dejaríais was convicted in Pierce County Superior Court of violating a domestic violence order for protection. The charge arose six months after issuance and service of the order, following a visit by the Defendant to the home of his girl friend, Kimberly Shupe, who had petitioned for the order. Defendant was also convicted of rape in the third degree for engaging in sexual intercourse with Ms. Shupe on two occasions, over her objections, that same night. At trial, the court declined to give defense counsel’s proposed instruction, which would have told the jury a person is not guilty of violating a protection order if the person protected by that order expressly invited or solicited the defendant’s presence. The Court of Appeals affirmed the Defendant’s convictions, and we granted his petition for review. We now affirm.

[941]*941Ms. Shupe met the Defendant in 1993 after separating from her husband. She filed for divorce in June 1993 and began seeing the Defendant regularly. Their relationship included his frequent overnight stays at her home. Ms. Shupe testified that, during divorce proceedings with her husband, a temporary parenting plan was filed, and she feared being found in contempt of its terms due to her relationship with the Defendant. She further testified her husband gave her $1,500 to help her move, and requested she petition for an order for protection against the Defendant to avoid being found in contempt of the parenting plan.

On September 9, 1993, Ms. Shupe signed a declaration in support of the request for a protection order, claiming she was a victim of Defendant’s harassment. She stated:

I met Steve back in February 1993. I’m married but going through a divorce. I decided to stop seeing him because it was becoming to [sic] much. He & my husband has got [sic] into it a few times also. Steve follows me, calls numerous times a day, calls my work, comes to my work. He just don’t [sic] get the hint its [sic] over.

Ex. 9.

On September 23, 1993, an Order for Protection from Civil Harassment was entered. It restrained the Defendant from contacting or attempting to contact Ms. Shupe in any manner, making any attempts to keep her under surveillance, and going within “100 feet” of her residence and workplace. Ex. 1. The order stated it was to remain in effect until September 23, 1994, and that any willful disobedience of its provisions would subject the Defendant to criminal penalties as well as contempt proceedings. Fife Police Officer Stephen Mauer served the Defendant with the order on November 23, 1993. Ms. Shupe testified her relationship with the Defendant continued despite the order.

The Defendant went to jail in May 1994, apparently for an offense unrelated to his relationship with Ms. Shupe. During that time, Ms. Shupe discovered he had been seeing [942]*942another woman. Following his stay in jail, on May 22, 1994, the Defendant went to Ms. Shupe’s home and let himself in through an unlocked door. Ms. Shupe, who had been asleep on the floor by the couch, confronted the Defendant, telling him she knew about the other woman and wanted nothing more to do with him. She did not tell him to leave, fearing he would get “mad and furious,” but walked back to her bedroom. The Defendant followed her, saying he would “have [her] one more time.” Verbatim Report of Proceedings at 40. He threw her on the bed, and, disregarding her protestations and refusals, had intercourse with her twice.

The Defendant was arrested and charged with one count of violation of a protection order and one count of rape in the second degree. At trial, the Defendant testified he was aware of the protection order and clearly understood its terms. He testified he did not rape Ms. Shupe but that the two of them had consensual sex.

The trial court declined to give defense counsel’s proposed instruction, which stated:

If the person protected by a Protection Order expressly invited or solicited the presence of the defendant, then the defendant is not guilty of Violation of Protection Order.

Clerk’s Papers at 44. Instead, the trial court instructed the jury as follows:

A person commits the crime of violation of a[n] order for protection when that person knowingly violates the terms of an order for protection.

Clerk’s Papers at 68.

The jury found the Defendant guilty of violation of a protection order and rape in the third degree. The Court of Appeals affirmed his convictions. We granted review and now affirm, holding consent is not a defense to the charge of violating a domestic violence order for protection.

The Defendant was convicted of a misdemeanor violation of a protection order under RCW 26.50.110(1), which provides:

[943]*943Whenever an order for protection is granted under this chapter and the respondent or person to be restrained knows of the order, a violation of the restraint provisions or of a provision excluding the person from a residence, workplace, school, or day care is a gross misdemeanor ....

The Defendant contends that, where a person protected by an order consents to the presence of the person restrained by the order, the jury should be instructed that consent is a defense to the charge of violating that order. We note at the outset that, even if consent were a defense to the crime of violating a protection order, it is far from clear that the contact in this case was consensual. Contrary to the Defendant’s proposed instruction, Ms. Shupe does not appear to have invited or solicited the Defendant’s presence on the night in question. More importantly, the jury found Defendant guilty of rape in the third degree, by definition nonconsensual contact. See RCW 9A.44.060(1)(a). The protection order prohibited any contact; even if Ms. Shupe consented to earlier contacts or to Defendant’s presence at her home that day, the rape was clearly a nonconsensual contact. We nevertheless reach the issue Defendant raises because he seems to suggest that Ms. Shupe’s repeated invitations and ongoing acquiescence to Defendant’s presence constituted a blanket consent or waiver of the order’s terms. We disagree.

The statutory elements of the crime of violation of a protection order do not address consent. Nor did the Legislature affirmatively establish consent as a defense elsewhere in RCW 26.50. The Defendant relies on Reed v. Reed, 149 Wash. 352, 270 P. 1028 (1928), a case which the Court of Appeals properly distinguished in affirming Defendant’s conviction.

The Court of Appeals correctly held Reed inapplicable. Reed relied on the notion that a protection order is merely a private right of enforcement that may be waived by the victim. The Court of Appeals noted, however, that in Reed, no other private or public interest was involved. State v. Dejarlais, 88 Wn. App. 297, 304, 944 P.2d 1110 (1997). A [944]

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Cite This Page — Counsel Stack

Bluebook (online)
969 P.2d 90, 136 Wash. 2d 939, 1998 Wash. LEXIS 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dejarlais-wash-1998.