(dissenting) — I dissent.
The majority holds that the defendant in a criminal trial may be required to bear the burden of persuasion on the issue of insanity. This violates the state constitution's guaranty of due process because sanity is an element of criminal intent, and therefore of the crime charged, and because the burden of proving every element of the crime *331must always rest with the State.
The majority recognizes the latter rule because it could not do otherwise. It is well established under both the state and United States constitutions that the burden of persuasion on an element of the crime may never be shifted to the defendant. State v. Roberts, 88 Wn.2d 337, 340, 562 P.2d 1259 (1977); State v. Kroll, 87 Wn.2d 829, 558 P.2d 173 (1976); Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
The majority reaches its result in spite of this well established rule by holding that sanity is not an element of the crime charged. Instead, it is contended, the defense of insanity is established by the Legislature as a separate matter of policy, and it may be expanded or contracted by the Legislature without constitutional restraint. The majority breaks the link between sanity and criminal intent or mens rea, and concludes it is therefore not unconstitutional to require the defendant to rebut a presumption of sanity.
This is contrary to the established law of this state, which has recognized from its earliest days that sanity is an element of intent, and of the crime charged, and that this is a rule of constitutional magnitude. In State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910), the court overturned an attempt by the Legislature to abolish the insanity defense completely. Article 1, section 3 of the Washington Constitution prohibited this, the court reasoned, because sanity is an element of intent and of mens rea to be proved by the state as part of its case.
We believe enough has been said to show that the sanity of the accused, at the time of committing the act charged against him, has always been regarded as much a substantive fact, going to make up his guilt, as the fact of his physical commission of the act.
Strasburg, at 119. The Strasburg court explicitly rejected the premise of the majority here, that the insanity defense is a creature of statute, its force and scope a matter for the Legislature alone to decide. The State made the same *332argument in Strasburg.
Learned counsel for the state contend that the legislature has the power to eliminate the element of intent from any and all crimes, and that it can provide punishment for the commission of any act it chooses to define as criminal, regardless of the intent or want of intent with which such act may be committed. . . .
. . . Whatever the power may be in the legislature to eliminate the element of intent from criminal liability, we are of the opinion that such power cannot be exercised to the extent of preventing one accused of crime from invoking the defense of his insanity at the time of committing the act charged, and offering evidence thereof before the jury. One so accused had this right at the time of the adoption of our constitution, and we are of the opinion that the question is so inherently related to the guilt or innocence of all accused persons that it cannot be now taken away from them without violating these guarantees of the constitution.
Strasburg, at 120-21.
It may be contended that Strasburg merely prohibits the Legislature from abolishing the defense, but does not bar it from limiting the defense by placing the burden of persuasion on the defendant. This ignores the reasoning of the case. The defense has constitutional standing and cannot be affected in any way by mere statute. What is more, it is of constitutional magnitude because sanity is an inseparable part of mens rea. The Legislature may not tamper with the defense because "the sanity of the accused . . . [is] as much a substantive fact, going to make up his guilt, as the fact of his physical commission of the act." Strasburg, at 119. If sanity is a part of mens rea, the burden of establishing it cannot be shifted to the defendant. State v. Roberts, supra; In re Winship, supra.
The constitutional premise of Strasburg has been repeatedly recognized by this court. See State v. Hennessy, 114 Wash. 351, 368, 195 P. 211 (1921); State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962), cert. denied, 375 U.S. 883 (1963). In White, the court wrote:
This court reasoned that the element of mens rea or *333"guilty mind," constitutionally cannot be ignored and that mental irresponsibility, which negates the existence of mens rea, cannot, therefore, be abolished as a defense.
(Italics mine.) White, at 597. The majority now chooses to abandon this settled understanding that sanity is a component of mens rea, and to do so without even a mention of Strasburg, Hennessy or White.
Of course, it might be argued that the court's holding today implicitly overrules or limits Strasburg. That might be plausible if the premise of Strasburg did not enter into the very definition of insanity in this state. It does, however. Both the definition of insanity and the definition of criminal intent in Washington turn on an appreciation of the unlawfulness of the act committed. If a defendant cannot appreciate the unlawfulness of his act, so that he meets the definition of insanity, it necessarily follows that he cannot appreciate the unlawfulness of his act, and so cannot form criminal intent. Sanity is an element of intent, of mens rea, and of the crime charged. The burden of persuasion cannot constitutionally be shifted to the defendant.
Washington has adopted the M'Naghten rule of insanity by statute. RCW 9A.12.010 provides in part:
To establish the defense of insanity, it must be shown that:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He was unable to perceive the nature and quality of the act with which he is charged; or
(b) He was unable to tell right from wrong with reference to the particular act charged.
The second disjunctive element in this test has always been interpreted to mean: Can the defendant form the requisite mens rea to imply culpability? In State v. Reece, 79 Wn.2d 453, 456, 486 P.2d 1088 (1971), this court wrote: "[T]he purpose of the insanity test is to aid in determining the culpability of the defendant, that is, to obtain an answer to the question: did he have the requisite intent to establish the mens rea?" State v. Collins, 50 Wn.2d 740, 754, 314 *334P.2d 660 (1957), states:
The law inquires not into the peculiar constitution of mind of the accused, or the mental weaknesses or disorders or defects with which he may be afflicted, but solely into the question of his capacity, at the time he committed a forbidden act, to have a criminal intent.
This is the very same criminal intent which the State is required to prove as part of its case. The statutory definition of criminal intent, RCW 9A.08.010(l)(a), provides: "Intent. A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." This has been interpreted by this court to mean that criminal intent with regard to homicide consists in part in an appreciation of the unlawfulness of the act.
Rather, it appears to us that unlawfulness — including the absence of self-defense — is an essential ingredient of the crime charged. Since proof of self-defense negates the element of intent in first degree murder, requiring an accused to prove self-defense places on him or her the burden of proving absence of an unlawful criminal intent.
State v. McCullum, 98 Wn.2d 484, 496, 656 P.2d 1064 (1983). In other words, under the law of this State as it has heretofore been understood, criminal intent and sanity both consist of an appreciation of the unlawfulness of the act. The wedge the majority drives between them in order to shift the burden of persuasion on insanity to the defendant violates the integrity of our criminal law. The court should hesitate to take such a step.
The majority argues that McCullum is not apposite because it deals with self-defense and because self-defense, unlike insanity, is expressly declared by statute to render the act of homicide lawful. RCW 9A.16.020(3). This ignores the fact that the element of intent might be absent, and the act lawful, for a different reason. Intent might be absent because the defendant was insane; because he could not appreciate the unlawfulness of his act and because the Legislature and this court have defined both criminal intent *335and sanity as the ability to appreciate the unlawfulness of the act.
The majority also argues that the court has already approved the constitutionality of shifting the burden of proving insanity, citing State v. McDonald, 89 Wn.2d 256, 271-72, 571 P.2d 930 (1977). However, the court there upheld the burden-shifting statute, RCW 10.77.030(2), against a federal constitutional challenge. The court did not separately consider independent state constitutional grounds for overturning the statute. Those grounds have, however, been raised by appellant here, and the court should carefully consider them. The majority does not do so.
We recently set forth the nonexclusive factors to be considered when deciding to rely on the state constitution to grant broader individual rights than those afforded by the federal constitution. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). The fourth factor is said to be:
4. Preexisting state law. Previously established bodies of state law, including statutory law, may also bear on the granting of distinctive state constitutional rights. State law may be responsive to concerns of its citizens long before they are addressed by analogous [federal] constitutional claims. Preexisting [state] law can thus help to define the scope of a constitutional right later established.
106 Wn.2d at 61-62. Nothing could describe this situation more accurately. The Strasburg case, decided in 1910, expressly relied on state, not federal, constitutional grounds. The issue was framed as whether, at the time the Washington Constitution was adopted, the principle of insanity's negating mens rea was firmly established and therefore incorporated into the State's constitution.
We have quoted from and cited authorities upon this question to this extent in order to show . . . how firmly fixed in our system of jurisprudence was this doctrine of incapacity of insane persons to commit crime at the time of the enactment of our criminal code of 1909, but, also, to conclusively show that, at the time of the adoption of *336our constitution,. . . this doctrine was in full force in the territory of Washington as a part of the common law, unimpaired by judicial decision or legislative enactment.
(Italics mine.) Strasburg, 60 Wash, at 115.41 This state constitutional law and the court's interpretation of the State's criminal intent statute combine in cases such as Strasburg, White, Reece and McCullum to create a body of due process law distinct and different from that considered in McDonald and the majority opinion here. That due process guaranty, Const, art. 1, § 3, prohibits the shifting of the burden of proving insanity to the defendant. Sanity is an element of mens rea and of the crime charged under Washington law, and that burden must always be borne by the State. State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977). The inescapable conclusion is that RCW 10.77-.030(2) is unconstitutional as a violation of the state due process clause.
I would therefore reverse appellant's conviction and remand the case to the trial court for a new trial under a proper instruction on the burden of persuasion on the insanity defense.
Utter, J., concurs with Dore, J.
The opinion here discusses the definition of insanity in connection with the right to a jury trial and the incorporation of that definition into that guaranty. The same reasoning applies to the decision's alternative ground, the due process guaranty of Const, art. 1, § 3.