Session of 1999
By Special Committee on Judiciary

10             AN  ACT concerning crimes and punishment; relating to identity theft;
11             departure sentencing; amending K.S.A. 1999 Supp. 21-4018 and 21-
12             4716 and repealing the existing sections.
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 1999 Supp. 21-4018 is hereby amended to read as
16       follows: 21-4018. (a) Identity theft is knowingly and with intent to defraud
17       for economic benefit, obtaining, possessing, transferring, using or at-
18       tempting to obtain, possess, transfer or use, one or more identification
19       documents or personal identification number of another person other
20       than that issued lawfully for the use of the possessor.
21             (b) "Identification documents" means the definition as provided in
22       K.S.A. 21-3830, and amendments thereto.
23             (c) Identity theft is a class A person misdemeanor severity level 7,
24       person felony.
25             (d) This section shall be part of and supplemental to the Kansas crim-
26       inal code.
27             Sec.  2. K.S.A. 1999 Supp. 21-4716 is hereby amended to read as
28       follows: 21-4716. (a) The sentencing judge shall impose the presumptive
29       sentence provided by the sentencing guidelines for crimes committed on
30       or after July 1, 1993, unless the judge finds substantial and compelling
31       reasons to impose a departure. If the sentencing judge departs from the
32       presumptive sentence, the judge shall state on the record at the time of
33       sentencing the substantial and compelling reasons for the departure.
34             (b)  (1) Subject to the provisions of subsection (b)(3), the following
35       nonexclusive list of mitigating factors may be considered in determining
36       whether substantial and compelling reasons for a departure exist:
37             (A) The victim was an aggressor or participant in the criminal conduct
38       associated with the crime of conviction.
39             (B) The offender played a minor or passive role in the crime or par-
40       ticipated under circumstances of duress or compulsion. This factor is not
41       sufficient as a complete defense.
42             (C) The offender, because of physical or mental impairment, lacked
43       substantial capacity for judgment when the offense was committed. The


  1       voluntary use of intoxicants, drugs or alcohol does not fall within the
  2       purview of this factor.
  3             (D) The defendant, or the defendant's children, suffered a continuing
  4       pattern of physical or sexual abuse by the victim of the offense and the
  5       offense is a response to that abuse.
  6             (E) The degree of harm or loss attributed to the current crime of
  7       conviction was significantly less than typical for such an offense.
  8             (2) Subject to the provisions of subsection (b)(3), the following no-
  9       nexclusive list of aggravating factors may be considered in determining
10       whether substantial and compelling reasons for departure exist:
11             (A) The victim was particularly vulnerable due to age, infirmity, or
12       reduced physical or mental capacity which was known or should have
13       been known to the offender.
14             (B) The defendant's conduct during the commission of the current
15       offense manifested excessive brutality to the victim in a manner not nor-
16       mally present in that offense.
17             (C) The offense was motivated entirely or in part by the race, color,
18       religion, ethnicity, national origin or sexual orientation of the victim.
19             (D) The offense involved a fiduciary relationship which existed be-
20       tween the defendant and the victim.
21             (E) The defendant, 18 or more years of age, employed, hired, used,
22       persuaded, induced, enticed or coerced any individual under 16 years of
23       age to commit or assist in avoiding detection or apprehension for com-
24       mission of any person felony or any attempt, conspiracy or solicitation as
25       defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto
26       to commit any person felony regardless of whether the defendant knew
27       the age of the individual under 16 years of age.
28             (F) The defendant's current crime of conviction is a crime of extreme
29       sexual violence and the defendant is a predatory sex offender. As used in
30       this subsection:
31             (i) "Crime of extreme sexual violence" is a felony limited to the
32       following:
33             (a) A crime involving a nonconsensual act of sexual intercourse or
34       sodomy with any person;
35             (b) a crime involving an act of sexual intercourse, sodomy or lewd
36       fondling and touching with any child who is 14 or more years of age but
37       less than 16 years of age and with whom a relationship has been estab-
38       lished or promoted for the primary purpose of victimization; or
39             (c) a crime involving an act of sexual intercourse, sodomy or lewd
40       fondling and touching with any child who is less than 14 years of age.
41             (ii) "Predatory sex offender" is an offender who has been convicted
42       of a crime of extreme sexual violence as the current crime of conviction
43       and who:


  1             (a) Has one or more prior convictions of any crimes of extreme sexual
  2       violence. Any prior conviction used to establish the defendant as a pred-
  3       atory sex offender pursuant to this subsection shall also be counted in
  4       determining the criminal history category; or
  5             (b) suffers from a mental condition or personality disorder which
  6       makes the offender likely to engage in additional acts constituting crimes
  7       of extreme sexual violence.
  8             (iii) "Mental condition or personality disorder" means an emotional,
  9       mental or physical illness, disease, abnormality, disorder, pathology or
10       condition which motivates the person, affects the predisposition or desires
11       of the person, or interferes with the capacity of the person to control
12       impulses to commit crimes of extreme sexual violence.
13             (G) The degree of economic harm or loss attributed to the current
14       crime of conviction was significantly greater than typical for such an
15       offense.
16             In determining whether aggravating factors exist as provided in this
17       section, the court shall review the victim impact statement.
18             (3) If a factual aspect of a crime is a statutory element of the crime
19       or is used to subclassify the crime on the crime severity scale, that aspect
20       of the current crime of conviction may be used as an aggravating or mit-
21       igating factor only if the criminal conduct constituting that aspect of the
22       current crime of conviction is significantly different from the usual crim-
23       inal conduct captured by the aspect of the crime.
24             (c) In determining aggravating or mitigating circumstances, the court
25       shall consider:
26             (1) Any evidence received during the proceeding;
27             (2) the presentence report;
28             (3) written briefs and oral arguments of either the state or counsel
29       for the defendant; and
30             (4) any other evidence relevant to such aggravating or mitigating cir-
31       cumstances that the court finds trustworthy and reliable. 
32       Sec.  3. K.S.A. 1999 Supp. 21-4018 and 21-4716 are hereby repealed.
33        Sec.  4. This act shall take effect and be in force from and after its
34       publication in the statute book.