Recodification Project

Second Draft Articles 31 (Preliminary), 32 (Principles of Criminal Liability), 33 (Anticipatory Crimes, and 34 (Crimes Against Persons)

For August 17, 2005 discussion

[Note: The following articles antedate the Kansas Criminal Code and need to be reordered: Article 18—PRIZE FIGHTS AND WRESTLING MATCHES; Article 25—IDENTIFICATION AND DETECTION OF CRIMES AND CRIMINALS; and Article 28—TRADING STAMPS, all need to be reassigned in the proposed criminal code.

KANSAS CRIMINAL CODE

Part I.—General Provisions

Article 1. - PRELIMINARY

21-101. Title and construction. This code is called and may be cited as the Kansas Criminal Code.

Comment

Presently K.S.A. 21-3101. The crimes code provides principles of criminal liability, prohibited conduct and sentencing provisions. Chapter 22 provides procedural rules to govern proceedings in criminal cases.

21-102. Crimes defined; classes of crimes. (a) A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction or a cigarette or tobacco infraction, a fine is authorized. Crimes are classified as felonies, misdemeanors, traffic infractions and cigarette or tobacco infractions.

(1) A felony is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law.

(2) A traffic infraction is a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.

(3) A cigarette or tobacco infraction is a violation of subsection (m) or (n) of K.S.A. 79-3321 and amendments thereto.

(4) All other crimes are misdemeanors.

Comment

Presently K.S.A. 21-3105.

21-103. Scope and application. (1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state, but where a crime is denounced by any statute of this state, but not defined, the definition of such crime at common law shall be applied.

(2) Unless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code.

(3) This code does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.

(4) This code has no application to crimes committed prior to its effective date. A crime is committed prior to the effective date of the code if any of the essential elements of the crime as then defined occurred before that date. Prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.

Comment

Presently K.S.A. 21-3102.

21-104. Invalidity of part of act; severability. If any provision of this act and any amendment thereto is held invalid or its application to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision. It is the express legislative intent that provisions of this act are severable.

Comment

Presently K.S.A. 21-3111 and 3112. The subject matter of the present statutes appears redundant and unduly verbose. The committee believes the statutes should be combined and the language simplified. Additionally, the express will of the legislature is stated.

21-105. Civil remedies preserved. This code does not bar, suspend or otherwise affect any civil right or remedy, authorized by law to be enforced in a civil action, based on conduct which this code makes punishable; and the civil injury caused by criminal conduct is not merged in the crime.

Comment

Presently K.S.A. 21-3103.

21-106. Territorial applicability. (a) A person is subject to prosecution and punishment under the law of this state if:

(1) The person He commits a crime wholly or partly within this state; or

(2) Being outside the state, the person he counsels, aids, abets, or conspires with another to commit a crime within this state; or

(3) Being outside the state, the person he commits an act which constitutes an attempt to commit a crime within this state.

(b) A person commits an act within this state which is a substantial and integral part of a crime, or an overall continuing crime plan, or of a continuing course of criminal conduct, and the act is in partial execution of the crime, plan or conduct. If the body of a homicide victim is found within the state, a person who commits the homicide is subject to prosecution and punishment under the laws of this state for commission of the homicide.

(c) A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission.

(d) It is not a defense that the ~~defendant's~~ person's conduct is also a crime under the laws of another state or of the United States or of another country.

(e) This state includes the land and water and the air space above such land and water with respect to which the state has legislative jurisdiction.

Comment

Presently K.S.A. 21-3104. Throughout the proposed code “offense” is changed to “crime.” Also, “a proximate result” was changed to "the proximate result” to more clearly state the code applies when some, but not necessarily all of the victims of a crime are within the state of Kansas. Subparagraph 2 has been modified to incorporate the Kansas Supreme Court's pronouncements in State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992) and explicitly authorize the exercise of jurisdiction for homicide when the body is found in the state.

21-107. Time limitations.

(1) A prosecution for murder may be commenced at any time.

(2) Except as otherwise provided in this statute, prosecutions for other crimes must be commenced within five years after it is committed.

(3) If the five year period for prosecution has expired, a prosecution may nevertheless be commenced for: (A) any crime a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the crime by an aggrieved party or by a person who has legal duty to represent an aggrieved party and who is not a party to the offense, but in no case shall this provision extend the five-year period of limitation by more than five additional years; or (B) any person felony within one year from the date on which the identity of the accused is conclusively established by DNA testing. [NOTE: RICHARD SMITH IS RESEARCHING HOW TO BETTER PHRASE 3(B)--IT IS A PROBLEM I BELIEVE; AT THE VERY LEAST WE NEED SOMETHING LIKE: "ANY PERSON FELONY ...ON WHICH DNA TESTING ESTABLISHES THE IDENTITY OF THE ACCUSED AS THE PERPETRATOR OF THE CRIME AND THE ACCUSED'S IDENTITY IS OTHERWISE UNKNOWN AND NOT REASONABLY ASCERTAINABLE BY A PROSECUTING AUTHORITY."]

(4) The period within which a prosecution must be commenced shall not include any period in which: (A) the accused is absent from the state; (B) the accused is concealed within the state so that process cannot be served upon the accused; (Cc) the fact of the crime is concealed; (D) a prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal; (E) an administrative agency is restrained by court order from investigating or otherwise proceeding on a matter before it as to any criminal conduct defined as a violation of any of the provisions of article 41 of chapter 25 and article 2 of chapter 46 of the Kansas Statutes Annotated which may be discovered as a result thereof regardless of who obtains the order of restraint; or (F) whether or not the fact of the crime is concealed by the active act or conduct of the accused, there is substantially competent evidence to believe two or more of the following factors are present: (i) the victim was a child under 15 years of age

at the time of the crime; (ii) the victim was of such age or intelligence that the victim was unable to determine that the acts constituted a crime; (iii) the victim was prevented by a parent or other legal authority from making known to law enforcement authorities the fact of the crime whether or not the parent or other legal authority is the accused; and (iv) there is substantially competent expert testimony indicating the victim psychologically repressed such witness' memory of the fact of the crime, and in the expert's professional opinion the recall of such memory is accurate and free of undue manipulation, and substantial corroborating evidence can be produced in support of the allegations contained in the complaint or information but in no event may a prosecution be commenced as provided in this section later than the date the victim turns 28 years of age. Corroborating evidence may include, but is not limited to, evidence the defendant committed similar acts against other persons or evidence of contemporaneous physical manifestations of the crime. "Parent or other legal authority" shall include but not be limited to natural and stepparents, grandparents, aunts, uncles or siblings.

(5) An ~~offense~~ crime is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

(6) A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution or a summons issued as provided in K.S.A. 22-2302. No such prosecution shall be deemed to have been commenced if the warrant or summons is not executed or served without unreasonable delay.

Comment

[NOTE: I NEED TO WORK ON THIS COMMENT AFTER I HEAR FROM RICHARD SMITH TO DISCUSS NOT ONLY DISCOVERY RULE BUT DNA AND SUMMONSES. Presently K.S.A. 2005 Supp. 21-3106. A “discovery rule” exception for fraud or breach of fiduciary obligation has been included based on a similar provision in the Model Penal Code. The“DNA” exception presently limited to a sexually violent offense as defined in K.S.A. 22-3717 has been expanded to include all person felonies. The definition of "DNA" has been moved to the general definition statute of the proposed code, K.S.A. [ ].

21-108. Multiple prosecutions for same act; lesser included crimes. (a) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment. However, if the defendant is found guilty of two or more crimes ~~that~~ which merge ~~because the~~ ~~same evidence is required to sustain a conviction of each charge~~, the defendant shall be convicted and sentenced for the greater offense only.

(b) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:

(1) a lesser degree of the same crime;

(2) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;

(3) an attempt to commit the crime charged; or

(4) an attempt to commit a crime defined under subsection (b)(1) or (b)(2).

(c) Whenever charges are filed against a person, accusing the person of a crime which includes another crime of which the person has been convicted, the conviction of the lesser included crime shall not bar prosecution or conviction of the crime charged if the crime charged was not consummated at the time of conviction of the lesser included crime, but the conviction of the lesser included crime shall be annulled upon the filing of such charges. Evidence of the person's plea or any admission or statement made by the person in connection therewith in any of the proceedings which resulted in the person's conviction of the lesser included crime shall not be admissible at the trial of the crime charged. If the person is convicted of the crime charged, or of a lesser included crime, the person so convicted shall receive credit against any prison sentence imposed or fine to be paid for the period of confinement actually served or the amount of any fine actually paid under the sentence imposed for the annulled conviction.

Comment

Presently K.S.A. 21-3107. In subparagraph (a) the committee has added language to inform in the event of merger, the defendant is to be convicted of the greater offense only. This is consistent with decisional law. See, State v. Winters, 276 Kan. 34, 72 P.3d 564 (2003).

21-109. Effect of former prosecution. (a) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:

(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or

(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or

(3) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict. A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.

A conviction of an included ~~offense~~ crime is an acquittal of the offense charged.

(b) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:

(1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began; or

(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or

(3) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (A) The illness or death of an indispensable party; or (B) the inability of the jury to agree; or (C) the impossibility of the jury arriving at a verdict, and the subsequent prosecution is for an offense of which the defendant could have been convicted if the former prosecution had not been terminated improperly.

(c) A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States or in a court of general jurisdiction of a sister state or in the municipal court of any city of this state for a crime which is within the concurrent jurisdiction of this state, if such former prosecution:

(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began; or

(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the prosecution in this state.

(d) A prosecution is not barred under this section:

(1) By a former prosecution before a court which lacked jurisdiction over the defendant or the offense; or

(2) By a former prosecution procured by the defendant without the knowledge of a prosecuting officer authorized to commence a prosecution for the maximum offense which might have been charged on the facts known to the defendant, and with the purpose of avoiding the sentence which otherwise might be imposed; or

(3) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.

(e) In no case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which such defendant was originally convicted.

Comment

Presently K.S.A. 21-3108.

21-110. Burden of proof; presumption of innocence. In all criminal proceedings the prosecution has the burden to prove beyond a reasonable doubt that a defendant is guilty of a crime. This standard requires the prosecution to prove beyond a reasonable doubt each required ~~factual~~ element of a crime. A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt as to which of two or more degrees of an ~~offense~~ crime he the defendant is guilty, he the defendant must be convicted of the lowest degree only. When there is a reasonable doubt as to ~~his~~ a defendant’s guilt, ~~he or she~~ the defendant must be ~~acquitted~~ found not guilty.

Comment

The subject matter of this statute was formerly in K.S.A. 21-3109. However, the subcommittee added subparagraph (a) to codify Kansas law regarding burden of proof in criminal proceedings. The provision is also consistent with PIK Crim. 2d 52.02.

21-111. Definitions. The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.

(1) "Act" includes a failure or omission to take action.

(2) "Another" means a person or persons as defined in this code other than the person whose act is claimed to be criminal.

(3) "Conduct" means an act or a series of acts, and the accompanying mental state.

(4) "Conviction" includes a judgment of guilt entered upon a plea of guilty.

(5) "Deception" means knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact.

(6) To "Deprive permanently" means to:

(a) Take from the owner the possession, use or benefit of property, without an intent to restore the same; or

(b) Retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or

(c) Sell, give, pledge or otherwise dispose of any interest in property or subject it to the claim of a person other than the owner.

(7) "DNA" means deoxyribonucleic acid.

(8) "Dwelling" means a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.

(9) ~~For purposes of this act~~, "Expungement" means the sealing of records such that they are unavailable except to the petitioner and criminal justice agencies as provided by K.S.A. 22-4701, et seq. and amendments thereto and except as otherwise provided in this act.

(10) "Firearm" means any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.

(11)~~(8)~~ "Forcible felony" includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.

(12)~~(9)~~ "Intent to defraud" means an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.

(13)~~(10)~~ "Law enforcement officer" means:

(a) Any person who by virtue of such person's office or public employment is vested by law with a duty to maintain public order or to make arrests for crimes, whether that duty extends to all crimes or is limited to specific crimes;

(b) any officer of the Kansas department of corrections or, for the purposes of K.S.A. 21-3409, 21-3411 and 21-3415, and amendments thereto, any employee of the Kansas department of corrections; or

(14)~~(11)~~ "Obtain" means to bring about a transfer of interest in or possession of property, whether to the offender or to another.

(15)~~(12)~~ "Obtains or exerts control" over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.

(16)~~(13)~~ "Owner" means a person who has any interest in property.

(17)~~(14)~~ "Person" means an individual, public or private corporation, government, partnership, or unincorporated association.

(18)~~(15)~~ "Personal property" means goods, chattels, effects, evidences of rights in action and all written instruments by which any pecuniary obligation, or any right or title to property real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or dismissed.

(19)~~(16)~~ "Property" means anything of value, tangible or intangible, real or personal.

(20)~~(17)~~ "Prosecution" means all legal proceedings by which a person's liability for a crime is determined.

(21)~~(18)~~ "Public employee" is a person employed by or acting for the state or by or for a county, municipality or other subdivision or governmental instrumentality of the state for the purpose of exercising their respective powers and performing their respective duties, and who is not a "public officer."

(22)~~(19)~~ "Public officer" includes the following, whether elected or appointed:

(a) An executive or administrative officer of the state, or a county, municipality or other subdivision or governmental instrumentality of or within the state.

(b) A member of the legislature or of a governing board of a county, municipality, or other subdivision of or within the state.

(c) A judicial officer, which shall include a judge of the district court, juror, master or any other person appointed by a judge or court to hear or determine a cause or controversy.

(d) A hearing officer, which shall include any person authorized by law or private agreement, to hear or determine a cause or controversy and who is not a judicial officer.

(e) A law enforcement officer.

(f) Any other person exercising the functions of a public officer under color of right.

(23)~~(20)~~ "Real property" or "real estate" means every estate, interest, and right in lands, tenements and hereditaments.

(24)~~(21)~~ "Solicit" or "solicitation" means to command, authorize, urge, incite, request, or advise another to commit a crime.

(25)~~(22)~~ "State" or "this state" means the state of Kansas and all land and water in respect to which the state of Kansas has either exclusive or concurrent jurisdiction, and the air space above such land and water. "Other state" means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico.

(26)~~(23)~~ "Stolen property" means property over which control has been obtained by theft.

(27)~~(24)~~ "Threat" means a communicated intent to inflict physical or other harm on any person or on property.

(28)~~(25)~~ "Written instrument" means any paper, document or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying or recording information, and any money, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.

Comment

Presently, the provisions of this section are in K.S.A. Supp. 2005 21-3110 and 21-3110a. Added are proposed definitions for "DNA" and "Expungment."

Article 32. - PRINCIPLES OF CRIMINAL LIABILITY

21-3201. Criminal intent. (a) Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.

(b) Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms "knowing," "willful," "purposeful," and "on purpose" are included within the term "intentional."

(c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms "gross negligence," "culpable negligence," "wanton negligence" and "wantonness" are included within the term "recklessness" as used in this code.

21-201. Criminal intent. (a) Except as otherwise provided by law, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the accused acted (1) intentionally; or (2) recklessly; or (3) was criminally negligent with respect to each material element of the crime. Proof that an accused acted intentionally shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner, or under circumstances evidencing criminal negligent.

(b)Definitions. (a) Intentional conduct includes the terms "knowing," and "purposeful." ~~and willful."~~ (b) Reckless conduct is conduct done under circumstances that demonstrates a realization of the imminence of danger and a conscious disregard of that danger. A conscious disregard of danger requires a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation. (c) Criminal negligence is conduct done under circumstances that demonstrates a failure to perceive a substantial and unjustifiable risk as to the imminence of danger. A failure to perceive a substantial and unjustifiable risk as to the imminence of danger requires a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation.

Comment

Presently K.S.A. 21-3201. The statute is revised to clarify levels of culpability and define essential terms. Deleted is the term "willful" to mean "intentional" conduct because the term has varied meanings and is not helpful in defining culpability. Abandoned is equating gross negligence as reckless conduct. In the committee’s opinion, the blending of the two distinct levels of culpability is confusing and has necessitated the legislature on occasion to finesse the definition. See, for example, K.S.A. 21-3405 which provides for a “material deviation from the standard of care which a reasonable person would observe under the same circumstances.” This proposed revision provides for “criminal negligence” as the third and lowest level of culpability in the code and as defined is distinguishable from ordinary negligence. The definition of “reckless conduct” clarifies that the accused must be subjectively aware of the risk.

21-202. Criminal intent; exclusions. (a) Proof of criminal intent does not require proof of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute.

(b) Proof of criminal intent does not require proof that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.

Comment

Presently K.S.A. 21-3202.

21-203. Ignorance or mistake. (a) A person's ignorance or mistake as to a matter of either fact or law, except as provided in section 21-3202, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.

(b) A person's reasonable belief that his conduct does not constitute a crime is a defense if:

(1) The crime is defined by an administrative regulation or order which is not known to him and has not been published in the Kansas administrative regulations or an annual supplement thereto, as provided by law; and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or

(2) He acts in reliance upon a statute which later is determined to be invalid; or

(3) He acts in reliance upon an order or opinion of the supreme court of Kansas or a United States appellate court later overruled or reversed;

(4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.

(c) Although a person's ignorance or mistake of fact or law, or reasonable belief, as described in subsection (2) of this section, is a defense to the crime charged, he may be convicted of an included crime of which he would be guilty if the fact or law were as he believed it to be.

Comment

Presently K.S.A. 21-3203.

21-204. Guilt without criminal intent, when. (a) A person may be guilty of an offense without having criminal intent if the crime is: (1) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described; or (2) a violation of K.S.A. 8-1567 or 8-1567a and amendments thereto.

Comment

Presently K.S.A. 21-3204.

21-205. Liability for crimes of another. (a) A person is criminally responsible for a crime committed by another if: (1) such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime; or, (2) such person and another engage in an unlawful activity and the other person acts in a intentional, reckless or negligent manner likely to result in death, great bodily harm, or disfigurement to other individuals.

(b) A person liable under subsection (a) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.

(c) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.

Comment

Presently K.S.A. 21-3205. The proposed amendment is consistent with the Kansas Supreme Court’s holding in State v. Garza, 259 Kan. 826, 916 P.2d 9 (1996) that accomplice liability will attach when the two parties engage in an unlawful activity such as drag racing or gang fights and innocent third parties are seriously injured, maimed, or killed. The amendment clarifies that accomplice liability attaches regardless of whether the underlying prohibited act is criminal if done in a reckless or criminally negligent manner.

K.S.A. 21-206. Corporations; criminal responsibility. (a) A corporation is criminally responsible for acts committed by its agents when acting within the scope of their authority.

(b) "Agent" means any director, officer, servant, employee or other person who is authorized to act in behalf of the corporation.

Comment

Presently K.S.A. 21-3206.

21-207. Individual liability for corporate crime. (a) An individual who performs criminal acts, or causes such acts to be performed, in the name of or on behalf of a corporation is legally responsible to the same extent as if such acts were in his own name or on his own behalf.

(b) An individual who has been convicted of a crime based on conduct performed by him for and on behalf of a corporation is subject to punishment as an individual upon conviction of such crime, although a lesser or different punishment is authorized for the corporation.

Comment

Presently K.S.A. 21-3207.

21-208. Intoxication. (a) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.

(b) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.

Comment

Presently K.S.A. 21-3208. Subparagraph (1) applies to general intent crimes and subparagraph (2) applies to specific intent crimes. The distinction is this: If the definition of a crime requires a more particular intent or state of mind than required under K.S.A. 21-201, voluntary intoxication may be a defense.

21-209. Compulsion. (a) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct. (b) The defense provided by this section is not available to one who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.

Comment

Presently K.S.A. 21-3209. In subparagraph (b) the terms "willfully" and "wantonly" have been changed to "intentionally" and "recklessly" in keeping with the committee's intent to provide consistent terminology throughout the code when appropriate and eliminate redundant terms. This section recognizes duress as a defense in all crimes except murder and voluntary manslaughter. The explicit language of this section and proposed K.S.A. 21-211, Use of force in defense of a person, also are broad enough in meaning to provide implicit recognition of the common law necessity defense, albeit more limited than under the common law. The committee is not persuaded a specific provision recognizing justification by necessity should be proposed. However, it is still an open issue whether the Kansas Supreme Court will decide the defense is recognized. See, City of Wichita v. Tilson, 253 Kan. 285, 855 P.2d 911 (1993).

21-210. Entrapment. (a) A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:

(1) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or

(2) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.

Comment

Presently K.S.A. 21-3210.

21-211. Use of force in defense of a person. A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.

Comment

Presently K.S.A. 21-3211.

21-212. Use of force in defense of dwelling. A person is justified in the use of force against another when and to the extent that it appears to him and he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon his dwelling.

Comment

Presently K.S.A. 21-212.

21-213. Use of force in defense of property other than a dwelling. A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.

Comment

Presently K.S.A. 21-3213. This section recognizes duress as a defense in all crimes except murder and voluntary manslaughter. The explicit language of this section and proposed K.S.A. 21-211, Use of force in defense of a person, also are broad enough to provide an implicit recognition and defense of the common law necessity defense, albeit more limited than under the common law. The committee is not persuaded a specific statute regarding justification by necessity should be proposed. However, it is still an open issue whether the Kansas Supreme Court will decide explicit recognition of the defense should be recognized. See, City of Wichita v. Tilson, 253 Kan. 285, 855 P.2d 911 (1993).

21-214. Use of force by an aggressor. The justification described in sections ~~21-3211, 21-3212, and 21-3213~~ 21-211, 212, and 213 is not available to a person who:

(a) Is attempting to commit, committing, or escaping from the commission of a forcible felony; or

(b) Initially provokes the use of force against himself or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or

(d) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Comment

Presently K.S.A. 21-3214.

21-215. Law enforcement officer's use of force in making arrest. (a) A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer's self or another from bodily harm while making the arrest. However, such officer is justified in using force likely to cause death or great bodily harm only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.

(b) A law enforcement officer making an arrest pursuant to an invalid warrant is justified in the use of any force which such officer would be justified in using if the warrant were valid, unless such officer knows that the warrant is invalid. Comment

Presently K.S.A. 21-3215.

21-216. Private person's use of force in making arrest. (a) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which he would be justified in using if he were summoned or directed by a law enforcement officer to make such arrest, except that he is justified in the use of force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another.

(b) A private person who is summoned or directed by a law enforcement officer to assist in making an arrest which is unlawful, is justified in the use of any force which he would be justified in using if the arrest were lawful.

Comment

Presently K.S.A. 21-3216.

21-217. Use of force in resisting arrest. A person is not authorized to use force to resist an arrest which he knows is being made either by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person arrested believes that the arrest is unlawful.

Comment

Presently K.S.A. 21-3217.

PART II. - PROHIBITED CONDUCT

Article 33 – Anticipatory Crimes

21-301. Attempt. (a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.

(b) It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.

(c) An attempt to commit an off-grid felony shall be ranked at nondrug severity level 1. An attempt to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime. The lowest severity level for an attempt to commit a nondrug felony shall be level 10.

(d) An attempt to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.

(e) An attempt to commit a class A person misdemeanor is a class B person misdemeanor. An attempt to commit a class A nonperson misdemeanor is a class B nonperson misdemeanor.

(f) An attempt to commit a class B or C misdemeanor is a class C misdemeanor

Comment

Presently K.S.A. 21-3301.

21-302. Conspiracy. (a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.

(b) It is immaterial to the criminal liability of a person charged with conspiracy that any other person with whom the defendant conspires lacks the actual intent to commit the underlying crime provided the defendant believes the other person does have the actual intent to commit the underlying crime.

(c) It shall be a defense to a charge of conspiracy that the accused voluntarily and in good faith withdrew from the conspiracy, and communicated the fact of such withdrawal to one or more of the accused person's co-conspirators, before any overt act in furtherance of the conspiracy was committed by the accused or by a co-conspirator.

(d) Conspiracy to commit an off-grid felony shall be ranked at nondrug severity level 2. Conspiracy to commit any other nondrug felony shall be ranked on the nondrug scale at two severity levels below the appropriate level for the underlying or completed crime. The lowest severity level for conspiracy to commit a nondrug felony shall be level 10.

(e) Conspiracy to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.

(f) A conspiracy to commit a misdemeanor is a class C misdemeanor.

Comment

Presently K.S.A. 21-3302. The committee proposes the statute should be amended to provide for culpability under a unilateral theory of conspiracy rather than a bilateral theory. This proposal is consistent with the MPC and the law of many jurisdictions. There does not appear to be any justification for permitting a wrongdoer to escape criminal liability merely because the perceived co-conspirator is an undercover police officer or an informant.

21-303. Criminal solicitation. (a) Criminal solicitation is commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.

(b) It is immaterial under subsection (a) that the actor fails to communicate with the person solicited to commit a felony if the person's conduct was designed to effect a communication.

(c) It is an affirmative defense that the actor, after soliciting another person to commit a felony, persuaded that person not to do so or otherwise prevented the commission of the felony, under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purposes.

(d) Criminal solicitation to commit an off-grid felony shall be ranked at nondrug severity level 3. Criminal solicitation to commit any other nondrug felony shall be ranked on the nondrug scale at three severity levels below the appropriate level for the underlying or completed crime. The lowest severity level for criminal solicitation to commit a nondrug felony shall be level 10.

(e) Criminal solicitation to commit a felony which prescribes a sentence on the drug grid shall reduce the prison term prescribed in the drug grid block for an underlying or completed crime by six months.

Comment

Presently K.S.A. 21-3303.

Article 34 - Crimes Against Persons

21-401. Capital murder. (a) Capital Murder is the:

(1) Intentional and premeditated killing of any person in the commission of kidnapping, as defined in K.S.A. [21-3420] and amendments thereto, or aggravated kidnapping, as defined in K.S.A. [21-3421]and amendments thereto, when the kidnapping or aggravated kidnapping was committed with the intent to hold such person for ransom;

(2) intentional and premeditated killing of any person pursuant to a contract or agreement to kill such person or being a party to the contract or agreement pursuant to which such person is killed;

(3) intentional and premeditated killing of any person by an inmate or prisoner confined in a state correctional institution, community correctional institution or jail or while in the custody of an officer or employee of a state correctional institution, community correctional institution or jail;

(4) intentional and premeditated killing of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, as defined in K.S.A. [21-3502] and amendments thereto, criminal sodomy, as defined in subsections [(a)(2) or (a)(3) of K.S.A. 21-3505] and amendments thereto or aggravated criminal sodomy, as defined in K.S.A. [21-3506] and amendments thereto, or any attempt thereof, as defined in K.S.A. [21-3301]and amendments thereto;

(5) intentional and premeditated killing of a law enforcement officer, as defined in K.S.A. [21-3110] and amendments thereto;

(6) intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct; or

(7) intentional and premeditated killing of a child under the age of 14 in the commission of kidnapping, as defined in K.S.A. [21-3420] and amendments thereto, or aggravated kidnapping, as defined in K.S.A. [21-3421] and amendments thereto, when the kidnapping or aggravated kidnapping was committed with intent to commit a sex offense upon or with the child or with intent that the child commit or submit to a sex offense.

(b) For purposes of this section, "sex offense" means rape, as defined in K.S.A. [21-3502] and amendments thereto, aggravated indecent liberties with a child, as defined in K.S.A.[21-3504]and amendments thereto, aggravated criminal sodomy, as defined in K.S.A. 21-3506] and amendments thereto, prostitution, as defined in K.S.A. [21-3512] and amendments thereto, promoting prostitution, as defined in K.S.A. [21-3513] and amendments thereto or sexual exploitation of a child, as defined in K.S.A. [21-3516] and amendments thereto.

Comment

Presently K.S.A. 21-3439. In State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), the Kansas Supreme Court held K.S.A. 21-4624(e) unconstitutional on its face under the Eight and Fourteenth Amendments. The Marsh court also held the hard 40 sentencing scheme in K.S.A. 2003 Supp. 21-4635(a) does not run afoul of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Marsh is presently pending before the United States Supreme Court.

Note to Committee: I would suggest we follow present Kansas law and also adopt the sentencing procedures for death cases in K.S.A. 21-4624 et seq. except modify to provide: "If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances ... exist, and further, that the existence of such aggravating circumstances outweighs any mitigating circumstances which are found to exist, the defendant shall be sentenced to death."

Agg. Circumstances are limited by statute and the mitigating circumstances include, but are not limited to those provided by statute. With the exception of "a term of imprisonment is sufficient to defend and protect the people's safety from the defendant," the agg. and mitigating circumstances are essentially identical in death cases and hard 50 cases. I would recommend we not change the statutory agg./mitigating circumstances as provided in current law for death and hard 50 cases.

21-402. Murder in the first degree. (a) Murder in the first degree is the killing of a human being committed:

(1) In the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. [21-3436] and amendments thereto

(2) Intentionally and with premeditation and accompanied by one or more aggravating circumstances found to exist which outweigh any mitigating circumstances found to exist..

(b) Aggravating circumstances shall be limited to the following:

{(1) I have no particular problem with Tom's list but want to make certain all of the factors in K.S.A. 21-4625 are included.}

....

{(1) I have no particular problem with Tom's list but want to make certain all of the factors in K.S.A. 21-4626 as amended are included.}

.....

(d) Murder in the first degree is an off-grid person felony.

Comment

[Needs to be written after committee decides substantive issues]

21-403. Inherently dangerous felony; definition. (a) Any of the following felonies shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto:

(1) Kidnapping, as defined in K.S.A. [21-3420] and amendments thereto;

(2) aggravated kidnapping, as defined in K.S.A. [21-3421] and amendments thereto;

(3) robbery, as defined in K.S.A. 21-3426] and amendments thereto;

(4) aggravated robbery, as defined in K.S.A. [21-3427] and amendments thereto;

(5) rape, as defined in K.S.A. [21-3502] and amendments thereto;

(6) aggravated criminal sodomy, as defined in K.S.A. [21-3506] and amendments thereto;

(7) abuse of a child, as defined in K.S.A. [21-3609] and amendments thereto;

(8) felony theft under subsection [(a) or (c) of [21-3701] and amendments thereto;

(9) burglary, as defined in K.S.A [21-3715] and amendments thereto;

(10) aggravated burglary, as defined in K.S.A. [21-3716] and amendments thereto;

(11) arson, as defined in K.S.A. [21-3718] and amendments thereto;

(12) aggravated arson, as defined in K.S.A. [21-3719] and amendments thereto;

(13) treason, as defined in K.S.A. [21-3801] and amendments thereto;

(14) any felony offense as provided in K.S.A. [65-4127a, 65-4127b or 65-4159] or K.S.A. [65-4160] through 65-4164] of the Uniform Controlled Substances Act and amendments thereto;

(15) any felony offense as provided in K.S.A. [21-4219] (criminal discharge of a firearm at an unoccupied building) and amendments thereto;

(16) endangering the food supply as defined in K.S.A. [21-4221] and amendments thereto;

(17) aggravated endangering the food supply as defined in K.S.A. [21-4222], and amendments thereto; and

(18) fleeing or attempting to elude a police officer, as defined in subsection (b) of K.S.A.. 8-1568, and amendments thereto..

(b) Any of the following felonies shall be deemed an inherently dangerous felony only when such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto as to not be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. [21-3401] and amendments thereto:

(1) Murder in the first degree, as defined in [ subsection (a) of K.S.A. 21-3401] and amendments thereto;

(2) murder in the second degree, as defined in [subsection (a) of K.S.A. 21-3402] and amendments thereto;

(3) voluntary manslaughter, as defined in subsection [(a) of K.S.A. 21-3403] and amendments thereto;

(4) aggravated assault, as defined in K.S.A. [21-3410] and amendments thereto;

(5) aggravated assault of a law enforcement officer, as defined in K.S.A. [21-3411] and amendments thereto;

(6) aggravated battery, as defined in subsection [(a)(1) of K.S.A. 21-3414] and amendments thereto; and

(7) aggravated battery against a law enforcement officer, as defined in K.S.A.[21-3415] and amendments thereto.

~~(c) This section shall be part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 2005 Supp. 21-3436.

21-404. Murder in the second degree. (a) Murder in the second degree is the killing of a human that is: (1) intentional and accompanied by no aggravating or mitigating circumstances as defined in K.S.A. 21-402; or (2) intentional and any aggravating and mitigating circumstances are found to be in balance; or (3) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.

(b) Murder in the second degree as described in subsection (a)(1) or (2) is a severity level 1, person felony. Murder in the second degree as described in subsection (a)(3) is a severity level 2, person felony.

Comment

Presently K.S.A. 21-3402. [Note additional comment will be necessary after committee makes substantive decisions.]

21-405. Voluntary manslaughter. 21-3403. (a) Voluntary manslaughter is the intentional killing of a human being and mitigating circumstances as defined in K.S.A. 21-402 outweigh aggravating circumstances as defined in K.S.A. 21-402.

(b) Voluntary manslaughter is a severity level 3, person felony.

Comment

Presently, K.S.A. 21-3403. [Note additional comment will be necessary after committee makes substantive decisions.]

21-406. Involuntary manslaughter. (a) Involuntary manslaughter is the unintentional killing of a human being committed:

(1) Recklessly; or

(2) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A. [21-3436] and amendments thereto, that is enacted for the protection of human life or safety or a misdemeanor that is enacted for the protection of human life or safety, including acts described in K.S.A. 8-1566 (reckless driving), ~~and~~ subsection (a) of 8-1568 (fleeing or attempting to elude a police officer) and ~~amendments thereto~~ , ~~but~~ ~~excluding the acts described in~~ K.S.A. 8-1567 (driving under the influence of alcohol or drugs); or

(3) during the commission of a lawful act in an unlawful manner.

(b) Involuntary manslaughter for driving under the influence of alcohol or drugs as prohibited in K.S.A. 8-1567 is a severity level 4, person felony. Involuntary manslaughter under all other circumstances is a severity level 5, person felony.

Comment

Presently K.S.A. Supp. 2005 21-3404 and 21-3442. For the sake of coherence, the two laws have been combined into one statute.

21-407. Vehicular homicide. Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat or other motor vehicle in a criminally negligent manner. which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.

Vehicular homicide is a class A person misdemeanor. The proposed amendment requires a culpable state of criminal negligence as defined in the proposed amendments to K.S.A. 21-3201 that has been renumbered in this proposed recodification as K.S.A. 21-201.

Comment

Presently, K.S.A. 21-3405.

21-408. Assisting suicide. (a) Assisting suicide is:

(1) Knowingly by force or duress causing another person to commit or to attempt to commit suicide; or

(2) with the intent and purpose of assisting another person to commit or to attempt to commit suicide, knowingly either:

(A) Providing the physical means by which another person commits or attempts to commit suicide; or

(B) participating in a physical act by which another person commits or attempts to commit suicide.

(b) Assisting suicide under subsection (1) is a severity level 3, person felony. Assisting suicide under subsection (2) is a severity level 9, person felony.

Comment

Presently K.S.A. 21-3406.

21-409. Assault. (a) Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.

Comment

Presently K.S.A. 21-3408.

21-410. Assault of a law enforcement officer. (a) Assault of a law enforcement officer is an assault, as defined in K.S.A. 21-3408 and amendments thereto:

(1) Committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of such officer's duty; or

(2) committed against a uniformed or properly identified university or campus police officer while such officer is engaged in the performance of such officer's duty.

(b) Assault of a law enforcement officer is a class A person misdemeanor.

Comment

Presently K.S.A. 21-3409.

21-411. Aggravated assault. (a) Aggravated assault is an assault, as defined in K.S.A. 21-3408 and amendments thereto, committed:

(1) With a deadly weapon;

(2) while disguised in any manner designed to conceal identity; or

(3) with intent to commit any felony.

(b) Aggravated assault is a severity level 7, person felony. A person convicted of aggravated assault shall be subject to the provisions of subsection (h) of K.S.A. 21-4704 and amendments thereto.

Comment

Presently K.S.A. 21-3410.

21-412. Aggravated assault of a law enforcement officer. (a) Aggravated assault of a law enforcement officer is an aggravated assault, as defined in K.S.A. 21-3410 and amendments thereto:

(1) Committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of such officer's duty; or

(2) committed against a uniformed or properly identified university or campus police officer while such officer is engaged in the performance of such officer's duty.

(b) Aggravated assault of a law enforcement officer is a severity level 6, person felony. A person convicted of aggravated assault of a law enforcement officer shall be subject to the provisions of subsection (g) of K.S.A. 21-4704, and amendments thereto.

Comment

Presently K.S.A. 21-3411.

21-413. Battery. (a) Battery is:

(1) Intentionally or recklessly causing bodily harm to another person; or

(2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.

(b) Battery is a class B person misdemeanor.

Comment

Presently K.S.A. 21-3412.

21-414. Domestic battery. (a) Domestic battery is:

(1) intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or

(2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.

(b)(1) Upon a first conviction of a violation of domestic battery, a person shall be guilty of a class B person misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the person enroll in and successfully complete a domestic violence prevention program.

(2) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of domestic battery a second time, such person shall be guilty of a class A person misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for domestic violence prevention.

(3) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of domestic battery a third or subsequent time, such person shall be guilty of a person felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The court may also require as a condition of parole that such person enter into and complete a treatment program for domestic violence. The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

(1) Family or household member means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and

(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:

(A) "Conviction" includes being convicted of a violation of this section or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

(B) "conviction" includes being convicted of a violation of a law of another state, or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion or deferred judgment agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;

(C) only convictions occurring in the immediately preceding five years including prior to the effective date of this act shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offender, whichever is applicable; and

(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.

Upon a first conviction of a violation of domestic battery, a person shall be guilty of a class B person misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the person enroll in and successfully complete a domestic violence prevention program.

(2) for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:

(D) it is irrelevant whether an offense occurred before or after conviction for a previous offense.

Comment

Presently K.S.A. 21-3412a.

21-415. Battery against a law enforcement officer. (a) Battery against a law enforcement officer is a battery, as defined in K.S.A. 21-3412 and amendments thereto:

(1) Committed against a uniformed or properly identified state, county or city law enforcement officer, other than a state correctional officer or employee, a city or county correctional officer or employee, a juvenile correctional facility officer or employee or a juvenile detention facility officer or employee, while such officer is engaged in the performance of such officer's duty;

(2) committed against a state correctional officer or employee by a person in custody of the secretary of corrections, while such officer or employee is engaged in the performance of such officer's or employee's duty;

(3) committed against a juvenile correctional facility officer or employee by a person confined in such juvenile correctional facility, while such officer or employee is engaged in the performance of such officer's or employee's duty;

(4) committed against a juvenile detention facility officer or employee by a person confined in such juvenile detention facility, while such officer or employee is engaged in the performance of such officer's or employee's duty;

(5) committed against a city or county correctional officer or employee by a person confined in a city holding facility or county jail facility, while such officer or employee is engaged in the performance of such officer's or employee's duty; or

(6) committed against a uniformed or properly identified university or campus police officer while such officer is engaged in the performance of such officer's duty.

(b) Battery against a law enforcement officer as defined in subsection (a)(1) is a class A person misdemeanor. Battery against a law enforcement officer as defined in subsection (a)(2), (a)(3), (a)(4) or (a)(5) is a severity level 5, person felony.

(1) "Correctional institution" means any institution or facility under the supervision and control of the secretary of corrections.

(2) "State correctional officer or employee" means any officer or employee of the Kansas department of corrections or any independent contractor, or any employee of such contractor, working at a correctional institution.

(3) "Juvenile correctional facility officer or employee" means any officer or employee of the juvenile justice authority or any independent contractor, or any employee of such contractor, working at a juvenile correctional facility, as defined in K.S.A. 38-1602 and amendments thereto.

(4) "Juvenile detention facility officer or employee" means any officer or employee of a juvenile detention facility as defined in K.S.A. 38-1602 and amendments thereto.

(5) "City or county correctional officer or employee" means any correctional officer or employee of the city or county or any independent contractor, or any employee of such contractor, working at a city holding facility or county jail facility.

Comment

Presently K.S.A. 21-3413.

21-416. Aggravated battery.

(a) Aggravated battery is:

(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or

(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

(2)(A) recklessly causing great bodily harm to another person or disfigurement of another person; or

(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.

(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in subsection (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 21-4704 and amendments thereto.

Comment

Presently K.S.A. 21-3414.

21-417. Aggravated battery against a law enforcement officer.

(a) Aggravated battery against a law enforcement officer is:

(1) An aggravated battery, as defined in subsection (a)(1)(A) of K.S.A. 21-3414 and amendments thereto, committed against: (A) A uniformed or properly identified state, county or city law enforcement officer while the officer is engaged in the performance of the officer's duty; or (B) a uniformed or properly identified university or campus police officer while such officer is engaged in the performance of such officer's duty;

(2) an aggravated battery, as defined in subsection (a)(1)(B) or (a)(1)(C) of K.S.A. 21-3414 and amendments thereto, committed against: (A) A uniformed or properly identified state, county or city law enforcement officer while the officer is engaged in the performance of the officer's duty; or (B) a uniformed or properly identified university or campus police officer while such officer is engaged in the performance of such officer's duty; or

(3) intentionally causing, with a motor vehicle, bodily harm to: (A) A uniformed or properly identified state, county or city law enforcement officer while the officer is engaged in the performance of the officer's duty; or (B) a uniformed or properly identified university or campus police officer while such officer is engaged in the performance of such officer's duty.

(b)(1) Aggravated battery against a law enforcement officer as described in subsection (a)(1) or (a)(3) is a severity level 3, person felony.

(2) Aggravated battery against a law enforcement officer as described in subsection (a)(2) is a severity level 6, person felony.

(3) A person convicted of aggravated battery against a law enforcement officer shall be subject to the provisions of subsection (g) of K.S.A. 21-4704 and amendments thereto.

Comment

Presently K.S.A. 21-3415.

21-418. Unlawful interference with a firefighter. (a) Unlawful interference with a firefighter is knowingly and intentionally interfering with, molesting or assaulting, as defined in K.S.A. 21-3408 and amendments thereto, any firefighter while engaged in the performance of such firefighter's duties, or knowingly and intentionally obstructing, interfering with or impeding the efforts of any firefighter to reach the location of a fire.

(b)Unlawful interference with a firefighter is a class B person misdemeanor.

Comment

Presently K.S.A. 21-3416.

21-419. Permitting dangerous animal to be at large.

Permitting a dangerous animal to be at large is the act or omission of the owner or custodian of an animal of dangerous or vicious propensities who, knowing of such propensities, permits or suffers such animal to go at large or keeps such animal without taking ordinary care to restrain it.

~~Permitting a dangerous animal to be at large is a class B misdemeanor.~~

~~Comment~~

~~Presently K.S.A. 21-3418. *Recommendation to committe: consider moving from article 34 to article 42, Crimes Against Public Safety.~~ Presently K.S.A. 21-3418. This section would be repealed if proposed 21-4__, Endangerment of another person, is enacted.

21-420. Criminal threat.

(a) A criminal threat is any threat to:

(1) Commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation;

(2) adulterate or contaminate any food, raw agricultural commodity, beverage, drug, animal feed, plant or public water supply; or

(3) expose any animal in this state to any contagious or infectious disease.

(b) A criminal threat is a severity level 9, person felony.

(c) As used in this section, "threat" includes any statement that one has committed any action described by subsection (a)(1) or (2).

Comment

Presently K.S.A. 21-3419.

21-421. Aggravated criminal threat.

(a) Aggravated criminal threat is the commission of one or more crimes of criminal threat, as defined in K.S.A. 21-3419 and amendments thereto, when a public, commercial or industrial building, place of assembly or facility of transportation is evacuated as a result of the threat or threats.

(b) Aggravated criminal threat is a severity level 6, person felony when the loss of productivity measured by the total wages and salaries of all persons evacuated as a result of the threat or threats for the period of evacuation is less than $500.

(c) Aggravated criminal threat is a severity level 5, person felony when the loss of productivity measured by the total wages and salaries of all persons evacuated as a result of the threat or threats for the period of evacuation is at least $500 but less than $25,000.

(d) Aggravated criminal threat is a severity level 4, person felony when the loss of productivity measured by the total wages and salaries of all persons evacuated as a result of the threat or threats for the period of evacuation equals or exceeds $25,000.

Comment

Presently K.S.A. 21-3419a.

21-422. Kidnapping. (a) Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:

(1) For ransom, or as a shield or hostage;

(2) to facilitate flight or the commission of any crime;

(3) to inflict bodily injury or to terrorize the victim or another; or

(4) to interfere with the performance of any governmental or political function.

(b) Kidnapping is a severity level 3, person felony.

Comment

Presently K.S.A. 21-3420.

21-423. Aggravated kidnapping.

(a) Aggravated kidnapping is kidnapping, as defined in K.S.A. 21-3420 and amendments thereto, when bodily harm is inflicted upon the person kidnapped.

(b) Aggravated kidnapping is a severity level 1, person felony.

Comment

Presently K.S.A. 21-3421.

21-424. Interference with parental custody.

(a) Interference with parental custody is leading, taking, carrying away, decoying or enticing away any child under the age of 16 years with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.

(b) It is not a defense to a prosecution under this section that the defendant is a parent entitled to joint custody of the child either on the basis of a court order or by virtue of the absence of a court order.

(c)(1) Interference with parental custody is a class A person misdemeanor if the perpetrator is a parent entitled to joint custody of the child either on the basis of a court order or by virtue of the absence of a court order.

(2) Interference with parental custody is a severity level 10, person felony in all other cases.

Comment

Presently K.S.A. 21-3422.

21-425. Aggravated interference with parental custody.

(a) Aggravated interference with parental custody is:

(1) Hiring someone to commit the crime of interference with parental custody, as defined by K.S.A. 21-3422 and amendments thereto; or

(2) the commission of interference with parental custody, as defined by K.S.A. 21-3422 and amendments thereto, by a person who:

(A) Has previously been convicted of the crime;

(B) commits the crime for hire;

(D) after lawfully taking the child outside the state while exercising visitation rights or parenting time, refuses to return the child at the expiration of that time;

(E) at the expiration of the exercise of any visitation rights or parenting time outside the state, refuses to return or impedes the return of the child; or

(F) detains or conceals the child in an unknown place, whether inside or outside the state.

(b) Aggravated interference with parental custody is a severity level 7, person felony.

~~(c) This section shall be a part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 21-3422a.

21-426. Interference with custody of a committed person.

(a) Interference with custody of a committed person is knowingly taking or enticing any committed person away from the control of such person's lawful custodian without privilege to do so. A committed person is any person committed other than by criminal process to any institution or other custodian by any court or other officer or agency authorized by law to make such commitment.

(b) Interference with custody of a committed person is a class A nonperson misdemeanor.

Comment

Presently K.S.A. 21-3423.

21-427. Criminal restraint. (a) Criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such person's liberty.

(b) This section shall not apply to acts done in the performance of duty by any law enforcement officer of the state of Kansas or any political subdivision thereof.

(c) Any merchant, or a merchant's agent or employee, who has probable cause to believe that a person has actual possession of and has wrongfully taken, or is about to wrongfully take merchandise from a mercantile establishment, may detain such person on the premises or in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor criminal restraint.

(d) Criminal restraint is a class A person misdemeanor.

Comment

Presently K.S.A. 21-3424.

21-428. Mistreatment of a confined person. Mistreatment of a confined person is the intentional abuse, neglect or ill-treatment of any person, who is detained or confined and who is physically disabled, mentally ill or mentally retarded or whose detention or confinement is involuntary, by any law enforcement officer or by any person in charge of or employed by the owner or operator of any correctional institution or any public or private hospital or nursing home.

~~Mistreatment of a confined person is a class A person misdemeanor.~~

Comment

Presently K.S.A. 21-3425. This section will be repealed if proposed 21-4__ , Endangerment to another person, is enacted.

21-429. Robbery. (a) Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.

(b)Robbery is a severity level 5, person felony.

Comment

Presently K.S.A. 21-3426.

21-430. Aggravated robbery. (a) Aggravated robbery is a robbery, as defined in K.S.A 21-3426 and amendments thereto, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.

(b)Aggravated robbery is a severity level 3, person felony.

Comment

Presently K.S.A. 21-3427.

*21-431. Blackmail. (a) Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person's will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.

(b) Blackmail is a severity level 7, nonperson felony.

Comment

Presently K.S.A. 21-3428. *Note to committee: consider moving from article 34 to article 40, Violation of Personal Rights.

*21-432. Income tax returns; disclosure or use for commercial purposes information obtained in preparing. (a) It shall be unlawful for any person, including an individual, firm, corporation, association, partnership or joint venture, or any employee or agent therefor, to disclose or use for commercial purposes any information obtained in the business of preparing federal or state income tax returns or in the business of assisting taxpayers in preparing such returns, unless such disclosure is:

(1) Consented to by the taxpayer in a separate, written document;

(2) expressly authorized by state or federal law;

(3) necessary to the preparation of the return; or

(4) pursuant to an order of any court of competent jurisdiction.

(b) For the purposes of this section, a person is engaged in the business of preparing federal or state income tax returns or in the business of assisting taxpayers in preparing such returns if the person does either of the following:

(1) Advertises or gives publicity to the effect that such person prepares or assists others in the preparation of state or federal income tax returns; or

(2) prepares or assists others in the preparation of state or federal income tax returns for compensation.

(c) Contacting a taxpayer to obtain the taxpayer's written consent to disclosure does not constitute a violation of this section.

(d) Any person violating any provision of this section shall be guilty of a class A nonperson misdemeanor.

Comment

Presently K.S.A. 21-3430. *Note to committee: consider moving from article 34 to article 40, Violation of Person Rights or article 44, Crimes Affecting Business.

~~21-433. Promoting or permitting hazing. (a) No social or fraternal organization shall promote or permit hazing.~~

(b) Hazing is intentionally, coercing, demanding or encouraging another person to perform as a condition of membership in a social or fraternal organization, any act which could reasonably be expected to result in great bodily harm, disfigurement or death or which is done in a manner whereby great bodily harm, disfigurement or death could be inflicted.

~~(c) Promoting or permitting hazing is a class B nonperson misdemeanor.~~

~~(d) This section shall be part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 21-3434. This section would be eliminated. See proposed section, 21-4__, Endangerment of another person.

21-434. Exposing another to a life threatening communicable disease. (a) It is unlawful for an individual who knows oneself to be infected with a life threatening communicable disease knowingly:

(1) To engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease;

(2) to sell or donate one's own blood, blood products, semen, tissue, organs or other body fluids with the intent to expose the recipient to a life threatening communicable disease;

(3) to share with another individual a hypodermic needle, syringe, or both, for the introduction of drugs or any other substance into, or for the withdrawal of blood or body fluids from, the other individual's body with the intent to expose another person to a life threatening communicable disease.

(b) As used in this section, the term "sexual intercourse" shall not include penetration by any object other than the male sex organ; the term "sodomy" shall not include the penetration of the anal opening by any object other than the male sex organ.

Comment

Presently K.S.A. 21-3435.

21-436. Mistreatment of a dependent adult. (a) Mistreatment of a dependent adult is knowingly and intentionally committing one or more of the following acts:

(1) Infliction of physical injury, unreasonable confinement or cruel punishment upon a dependent adult;

(2) taking unfair advantage of a dependent adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person; or

(3) omitting or depriving treatment, goods or services by a caretaker or another person which are necessary to maintain physical or mental health of a dependent adult.

(b) No dependent adult is considered to be mistreated for the sole reason that such dependent adult relies upon or is being furnished treatment by spiritual means through prayer in lieu of medical treatment in accordance with the tenets and practices of a recognized church or religious denomination of which such dependent adult is a member or adherent.

(c) For purposes of this section: "Dependent adult" means an individual 18 years of age or older who is unable to protect their own interest. Such term shall include:

(1) Any resident of an adult care home including but not limited to those facilities defined by K.S.A. 39-923 and amendments thereto;

(2) any adult cared for in a private residence;

(3) any individual kept, cared for, treated, boarded or otherwise accommodated in a medical care facility;

(4) any individual with mental retardation or a developmental disability receiving services through a community mental retardation facility or residential facility licensed under K.S.A. 75-3307b and amendments thereto;

(5) any individual with a developmental disability receiving services provided by a community service provider as provided in the developmental disability reform act; or

(6) any individual kept, cared for, treated, boarded or otherwise accommodated in a state psychiatric hospital or state institution for the mentally retarded.

(d)(1) Mistreatment of a dependent adult as defined in subsection (a)(1) is a severity level 6, person felony.

(2) Mistreatment of a dependent adult as defined in subsection (a)(2) is a severity level 7, person felony if the aggregate amount of the value of the resources is $25,000 or more.

(3) Mistreatment of a dependent adult as defined in subsection (a)(2) is a severity level 9, person felony if the aggregate amount of the value of the resources is at least $500 but less than $25,000.

(4) Mistreatment of a dependent adult as defined in subsection (a)(2) is a class A person misdemeanor if the aggregate amount of the value of the resources is less than $500.

(5) Mistreatment of a dependent adult as defined in subsection (a)(3) is a class A person misdemeanor.

(6) Mistreatment of a dependent adult as defined in subsection (a)(2) is a severity level 9, person felony if the aggregate amount of the value of the resources is less than $500 and committed by a person who has, within five years immediately preceding commission of the crime, been convicted of mistreatment of a dependent adult two or more times.

Comment

Presently K.S.A. 21-3437.

21-437. Stalking. (a) Stalking is an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety.

Stalking is a severity level 10 7, person felony.

(b) Any person who violates subsection (a) when there is an order issued pursuant to the protection from stalking act, K.S.A. 2004 Supp. 60-31a01 through 60-31a09, and amendments thereto, a temporary restraining order or an injunction in effect prohibiting the behavior described in subsection (a) against the same person, is guilty of a severity level 9 6, person felony.

(c) Any person who has a second or subsequent conviction occurring against such person, within seven years of a prior conviction under subsection (a) involving the same victim, is guilty of a severity level 8 5, person felony.

(d) For the purposes of this section: (1) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of "course of conduct."

(2) "Harassment" means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.

(3) "Credible threat" means a verbal or written threat, including that which is communicated via electronic means, or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for such person's safety. The present incarceration of a person making the threat shall not be a bar to prosecution under this section.

(4) "Electronic means" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, pagers and computer networks.

Comment

Presently K.S.A. 21-3438.

21-438. Injury to a pregnant woman. (a) Injury to a pregnant woman is injury to a pregnant woman by a person other than the pregnant woman in the commission of a felony or misdemeanor causing the pregnant woman to suffer a miscarriage as a result of that injury.

(b) As used in this section, "miscarriage" means the interruption of the normal development of the fetus, other than by a live birth, resulting in the complete expulsion or extraction from a pregnant woman of a product of human conception.

(c) Injury to a pregnant woman in the commission of a felony is a severity level 4, person felony. Injury to a pregnant woman in the commission of a violation of K.S.A. 21-3412, subsection (a)(1) of K.S.A. 21-3413, subsections (b)(1) and (b)(2) of K.S.A. 2004 Supp. 21-3412a or K.S.A. 21-3517, and amendments thereto, is a severity level 5, person felony. Injury to a pregnant woman in the commission of a misdemeanor other than a violation of K.S.A. 21-3412, subsection (a)(1) of K.S.A. 21-3413, subsections (b)(1) and (b)(2) of K.S.A. 2004 Supp. 21-3412a or K.S.A. 21-3517, and amendments thereto, is a class A person misdemeanor.

~~(d) The provisions of this section shall be part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 21-3440.

21-439. Injury to a pregnant woman by vehicle. (a) Injury to a pregnant woman by vehicle is injury to a pregnant woman by a person other than the pregnant woman in the unlawful operation of a motor vehicle causing the pregnant woman to suffer a miscarriage as a result of that injury.

(c)(1) Injury to a pregnant woman by vehicle while committing a violation of K.S.A. 8-1567 and amendments thereto is a severity level 5, person felony.

(2) Injury to a pregnant woman by vehicle while committing a violation of law related to the operation of a motor vehicle other than K.S.A. 8-1567 and amendments thereto is a class A person misdemeanor.

~~(d) The provisions of this section shall be part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 21-3441.

21-440. Battery against a school employee. (a) Battery against a school employee is a battery, as defined in K.S.A. 21-3412, and amendments thereto, committed against a school employee in or on any school property or grounds upon which is located a building or structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12 or at any regularly scheduled school sponsored activity or event, while such employee is engaged in the performance of such employee's duty.

(b) Battery against a school employee is a class A, person misdemeanor.

(c) As used in this section, "school employee" means any employee of a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any or the grades one through 12.

~~(d) This section shall be part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 21-3443.

21-441. Unlawful interference with an emergency medical services attendant. (a) Unlawful interference with an emergency medical services attendant is knowingly and intentionally interfering with, molesting or assaulting, as defined in K.S.A. 21-3408 and amendments thereto, any attendant while engaged in the performance of such attendant's duties, or knowingly and intentionally obstructing, interfering with or impeding the efforts of any attendant to reach the location of an emergency.

(b) As used in this section, "attendant" shall have the meaning ascribed to such term under K.S.A. 65-6112 and amendments thereto.

(c) Unlawful interference with an emergency medical services attendant is a class B person misdemeanor. ~~(d) This section shall be part of and supplemental to the Kansas criminal code.~~

Comment

Presently K.S.A. 21-3444.

21-442. Unlawful administration of a substance. (a) Unlawful administration of a substance is the intentional and knowing administration of a substance to another person without consent for the purpose of impairing such other person's physical or mental ability to appraise or control such person's conduct.

(b) "Unlawful administration of a substance" means any method of causing the ingestion by another person of a controlled substance, including gamma hydroxybutyric acid, or any controlled substance analog, as defined in K.S.A. 65-4101, of gamma hydroxybutyric acid, including gamma butyrolactone; butyrolactone; butyrolactone gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide; 4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric acid lactone and 4-hydroxybutanoic acid lactone with CAS No. 96-48-0; 1,4 butanediol; butanediol; butane-1,4-diol; 1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane; 1,4-tetramethylene glycol; tetramethylene glycol; tetramethylene 1,4-diol, into any food, beverage or other consumable that the person knows, or should know, would be consumed by such other person.

(c) This section shall not prohibit administration of any substance described in subsection (b) for lawful medical or therapeutic treatment.

(d) Unlawful administration of a substance is a class A person misdemeanor.

Comment

Presently K.S.A. 21-3445.

****stop for Aug. 17th meeting*****

[#] [now 21-4635]. Sentencing of certain persons to mandatory term of imprisonment of 40 or 50 years or life without the possibility of parole; determination; evidence presented; balance of aggravating and mitigating circumstances.

(a) Except as provided in K.S.A. [21-4622, 4623, and 4634] and amendments thereto, if a defendant is convicted of the crime of capital murder and a sentence of death is not imposed pursuant to subsection (e) of K.S.A. [21-4624], and amendments thereto, or requested pursuant to subsection (a) or (b) of K.S.A. [21-4624] and amendments thereto, the defendant shall be sentenced to life without the possibility of parole.

(b) If a defendant is convicted of murder in the first degree based upon the finding of premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or for crimes committed on and after July 1, 1999, a mandatory term of imprisonment of 50 years or sentenced as otherwise provided by law.

(c) In order to make such determination, the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. [21-4636] and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing shall be admissible and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible. No testimony by the defendant at the time of sentencing shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral argument.

(d) If the court finds that one or more of the aggravating circumstances enumerated in K.S.A. [21-4636] and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A.[21-4638] and amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The court shall designate, in writing, the statutory aggravating circumstances which it found. The court may make the findings required by this subsection for the purpose of determining whether to sentence a defendant pursuant to K.S.A. [21-4638] and amendments thereto notwithstanding contrary findings made by the jury or court pursuant to subsection (e) of K.S.A. [21-4624] and amendments thereto for the purpose of determining whether to sentence such defendant to death.

[ (e) In the event any subsection of this statute is held invalid, the invalidity shall not affect other provisions or application of the statute which can be given effect without the invalid subsection, and to this end the provisions of the statute are severable.]

-OR-

(b) In order to make such a determination, there shall be a separate sentencing proceeding. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If nay person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed. Jury selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such special jury. The jury at the sentencing proceeding may be waived in the manner provided by K.S.A. 22-3403 and amendments thereto for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court.

(c) In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A.[21-4635] and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible. No testimony by the defendant at the sentencing proceeding shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral argument.

(d) At the conclusion of the evidentiary portion of the sentencing proceeding, the court shall provide oral and written instructions to the jury to guide its deliberations.

(e) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. [21-4636] and amendments thereto exist and, further, that the existence of such aggravating circumstances outweigh any mitigating circumstances which are found to exist, the defendant shall be required to serve a mandatory term of imprisonment of 50 years . The jury, if its verdict is a unanimous recommendation of a sentence of 50 years, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence as otherwise provided by law and shall commit the defendant to the custody of the secretary of corrections. In nonjury cases, the court shall follow the requirements of this subsection in determining the sentence to be imposed.

(f) Notwithstanding the verdict of the jury, the trial court shall review any jury verdict imposing a sentence of 50 years hereunder to ascertain whether the imposition of such sentence is supported by the evidence. If the court determines that the imposition of such a sentence is not supported by the evidence, the court shall modify the sentence and sentence the defendant as otherwise provided by law and shall commit the defendant to the custody of the secretary of corrections. Whenever the court enters a judgment modifying the sentencing verdict of the jury, the court shall set forth its reasons for so doing in a written memorandum which shall become part of the record.

Article 35 – Sex Offenses

21-3501. Definitions..

The following definitions apply in this article unless a different meaning is plainly required:

(1) "Sexual intercourse" means any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse. "Sexual intercourse" does not include penetration of the female sex organ by a finger or object in the course of the performance of:

(a) Generally recognized health care practices; or

(b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.

(2) "Sodomy" means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal. "Sodomy" does not include penetration of the anal opening by a finger or object in the course of the performance of:

(a) Generally recognized health care practices; or

(b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.

(3) "Spouse" means a lawful husband or wife, unless the couple is living apart in separate residences or either spouse has filed an action for annulment, separate maintenance or divorce or for relief under the protection from abuse act.

(4) "Unlawful sexual act" means any rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual battery, as defined in this code.

COMMENT

Presently 21-3501.

21-3502. Rape.

(a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:

(A) When the victim is overcome by force or fear;

(B) when the victim is unconscious or physically powerless; or

(C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender;

(2) sexual intercourse with a child who is under 14 years of age;

(3) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure; or

(4) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender's authority.

(b) It shall be a defense to a prosecution of rape under subsection (a)(2) that the child was married to the accused at the time of the offense.

(c) Rape as described in subsection (a)(1) or (2) is a severity level 1, person felony. Rape as described in subsection (a)(3) or (4) is a severity level 2, person felony.

COMMENT

Presently K.S.A. 21-3502.

21-3503. Indecent liberties with a child.

(a) Indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:

(1) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or

(2) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.

(b) It shall be a defense to a prosecution of indecent liberties with a child as described in subsection (a)(1) that the child was married to the accused at the time of the offense.

COMMENT

Presently K.S.A. 21-3503.

21-3504. Aggravated indecent liberties with a child.

(a) Aggravated indecent liberties with a child is:

(1) Sexual intercourse with a child who is 14 or more years of age but less than 16 years of age;

(2) engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age and who does not consent thereto:

(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; or

(B) causing the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another; or

(3) engaging in any of the following acts with a child who is under 14 years of age:

(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or

(B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.

(b) It shall be a defense to a prosecution of aggravated indecent liberties with a child as provided in subsection (a)(1), (a)(2)(A) and (a)(3)(A) that the child was married to the accused at the time of the offense.

(c) Aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. Aggravated indecent liberties with a child as described in subsection (a)(2) is a severity level 4, person felony.

COMMENT

Presently K.S.A. 21-3504.

21-3505. Criminal sodomy.

(a) Criminal sodomy is:

(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;

(2) sodomy with a child who is 14 or more years of age but less than 16 years of age; or

(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.

(b) It shall be a defense to a prosecution of criminal sodomy as provided in subsection (a)(2) that the child was married to the accused at the time of the offense.

(c) Criminal sodomy as provided in subsection (a)(1) is a class B nonperson misdemeanor. Criminal sodomy as provided in subsections (a)(2) and (a)(3) is a severity level 3, person felony.

COMMENT

Presently K.S.A. 21-3505.

21-3506. Aggravated criminal sodomy.

(a) Aggravated criminal sodomy is:

(1) Sodomy with a child who is under 14 years of age;

(2) causing a child under 14 years of age to engage in sodomy with any person or an animal; or

(3) sodomy with a person who does not consent to the sodomy or causing a person, without the person's consent, to engage in sodomy with any person or an animal, under any of the following circumstances:

(A) When the victim is overcome by force or fear;

(B) when the victim is unconscious or physically powerless; or

(b) It shall be a defense to a prosecution of aggravated criminal sodomy under subsection (a)(1) that the child was married to the accused at the time of the offense.

COMMENT

Presently, K.S.A. 21-3506.

~~21-3507. Adultery.~~

~~(1) Adultery is engaging in sexual intercourse or sodomy with a person who is not married to the offender if:~~

~~(a) The offender is married; or~~

~~(b) The offender is not married and knows that the other person involved in the act is married.~~

~~(2) Adultery is a class C misdemeanor.~~

COMMENT

The provisions of this statute are not enforced. The committee believes recodification of the criminal code should include deletion of provisions that have fallen into disuse.

21-~~3508~~ -507. Lewd and lascivious behavior.

(a) Lewd and lascivious behavior is:

(1) Publicly engaging in otherwise lawful sexual intercourse or sodomy with knowledge or reasonable anticipation that the participants are being viewed by others; or

(2) publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.

(b)(1) Lewd and lascivious behavior if committed in the presence of a person 16 or more years of age is a class B nonperson misdemeanor.

(2) Lewd and lascivious behavior if committed in the presence of a person under 16 years of age is a severity level 9, person felony.

COMMENT

Presently K.S.A. 21-3508.

21-~~3510~~-508. Indecent solicitation of a child.

(a) Indecent solicitation of a child is:

(1) Enticing or soliciting a child 14 or more years of age but less than 16 years of age to commit or to submit to an unlawful sexual act; or

(2) inviting, persuading or attempting to persuade a child 14 or more years of age but less than 16 years of age to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.

(b) Indecent solicitation of a child is a severity level 7, person felony.

COMMENT

Presently K.S.A. 21-3510.

21-~~3511~~ -509. Aggravated indecent solicitation of a child.

Aggravated indecent solicitation of a child is:

(a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act; or

(b) inviting, persuading or attempting to persuade a child under the age of 14 years to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.

Aggravated indecent solicitation of a child is a severity level 6, person felony.

COMMENT

Presently K.S.A. 21-3511.

21-~~3512~~ -510. Prostitution.

(a) Prostitution is performing for hire, or offering or agreeing to perform for hire where there is an exchange of value, any of the following acts:

(1) Sexual intercourse;

(2) sodomy; or

(3) manual or other bodily contact stimulation of the genitals of any person with the intent to arouse or gratify the sexual desires of the offender or another.

(b) Prostitution is a class B nonperson misdemeanor.

COMMENT

Presently K.S.A. 21-3512.

21-~~3513~~ -511. Promoting prostitution.

(a) Promoting prostitution is:

(1) Establishing, owning, maintaining or managing a house of prostitution, or participating in the establishment, ownership, maintenance, or management thereof;

(2) permitting any place partially or wholly owned or controlled by the defendant to be used as a house of prostitution;

(3) procuring a prostitute for a house of prostitution;

(4) inducing another to become a prostitute;

(5) soliciting a patron for a prostitute or for a house of prostitution;

(6) procuring a prostitute for a patron;

(7) procuring transportation for, paying for the transportation of, or transporting a person within this state with the intention of assisting or promoting that person's engaging in prostitution; or

(8) being employed to perform any act which is prohibited by this section.

(b)(1) Promoting prostitution is a class A person misdemeanor when the prostitute is 16 or more years of age.

(2) Promoting prostitution when the prostitute is 16 or more years of age is a severity level 7, person felony if committed by a person who has, prior to the commission of the crime, been convicted of promoting prostitution.

(3) Promoting prostitution is a severity level 6, person felony when the prostitute is under 16 years of age.

COMMENT

Presently, K.S.A. 21-3513.

21-~~3515~~ -512. Patronizing a prostitute.

(1) Patronizing a prostitute is either:

(a) Knowingly entering or remaining in a house of prostitution with intent to engage in sexual intercourse, sodomy or any unlawful sexual act with a prostitute; or

(b) knowingly hiring a prostitute to engage in sexual intercourse, sodomy or any unlawful sexual act.

(2) Patronizing a prostitute is a class C misdemeanor.

COMMENT

Presently, K.S.A. 21-3515.

21-~~3516~~ -513. Sexual exploitation of a child.

(a) Sexual exploitation of a child is:

(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age to engage in sexually explicit conduct for the purpose of promoting any performance;

(2) possessing any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another;

(3) being a parent, guardian or other person having custody or control of a child under 18 years of age and knowingly permitting such child to engage in, or assist another to engage in, sexually explicit conduct for any purpose described in subsection (a)(1) or (2); or

(4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age, knowing the character and content of the performance.

(b) As used in this section:

(1) "Sexually explicit conduct" means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sado-masochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person.

(2) "Promoting" means procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

(A) For pecuniary profit; or

(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child or another.

(3) "Performance" means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk or any play or other live presentation.

(4) "Nude" means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered.

(~~d) This section shall be part of and supplemental to the Kansas criminal code.~~

COMMENT

Presently K.S.A. 21-3516

21-~~3517~~ -514. Sexual battery.

(a) Sexual battery is the intentional touching of the person of another who is 16 or more years of age, who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.

(b) Sexual battery is a class A person misdemeanor.

(~~c) This section shall be part of and supplemental to the Kansas criminal code.~~

COMMENT

Presently K.S.A. 21-3517.

21-~~3518~~ -515. Aggravated sexual battery.

(a) Aggravated sexual battery is the intentional touching of the person of another who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another under any of the following circumstances:

(1) When the victim is overcome by force or fear;

(2) when the victim is unconscious or physically powerless;

(3) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by, or was reasonably apparent to, the offender.

(b) Aggravated sexual battery is a severity level 5, person felony.

~~(c) This section shall be part of and supplemental to the Kansas criminal code.~~

COMMENT

Presently K.S.A. 21-3518.

21- 516. Unlawful sexual relations.

(a) Unlawful sexual relations is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if:

(1) The offender is an employee of the department of corrections or the employee of a contractor who is under contract to provide services for a correctional institution and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate; or

(2) the offender is a parole officer or the employee of a contractor who is under contract to provide supervision services for persons on parole, conditional release or postrelease supervision and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate who has been released on parole or conditional release or postrelease supervision under the direct supervision and control of the offender; or

(3) the offender is a law enforcement officer, an employee of a jail, or the employee of a contractor who is under contract to provide services in a jail and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined by lawful custody to such jail; or

(4) the offender is a law enforcement officer, an employee of a juvenile detention facility or sanctions house, or the employee of a contractor who is under contract to provide services in such facility or sanctions house and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined by lawful custody to such facility or sanctions house; or

(5) the offender is an employee of the juvenile justice authority or the employee of a contractor who is under contract to provide services in a juvenile correctional facility and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined by lawful custody to such facility; or

(6) the offender is an employee of the juvenile justice authority or the employee of a contractor who is under contract to provide direct supervision and offender control services to the juvenile justice authority and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is 16 years of age or older and (A) released on conditional release from a juvenile correctional facility under the direct supervision and control of the offender or (B) placed in the custody of the juvenile justice authority under the direct supervision and control of the offender;

(7) the offender is an employee of the department of social and rehabilitation services or the employee of a contractor who is under contract to provide services in a social and rehabilitation services institution and the person with whom the offender is engaging in consensual sexual intercourse, not otherwise subject to subsection (a)(1)(C) of K.S.A. 21-3502, and amendments thereto, lewd fondling or touching, or sodomy, not otherwise subject to subsection (a)(3)(C) of K.S.A. 21-3506, and amendments thereto, is a person 16 years of age or older who is a patient in such institution; or

(8) the offender is a teacher or a person in a position of authority and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching or sodomy is 16 or 17 years of age and a student enrolled at the school where the offender is employed. If the offender is the parent of the student, the provisions of K.S.A. 21-3603, and amendments thereto, shall apply, not this subsection.

(b) For purposes of this act:

(1) "Correctional institution" means the same as prescribed by K.S.A. 75-5202, and amendments thereto;

(2) "inmate" means the same as prescribed by K.S.A. 75-5202, and amendments thereto;

(3) "parole officer" means the same as prescribed by K.S.A. 75-5202, and amendments thereto;

(4) "postrelease supervision" means the same as prescribed in the Kansas sentencing guidelines act in K.S.A. 21-4703, and amendments thereto;

(5) "juvenile detention facility" means the same as prescribed by K.S.A. 38-1602, and amendments thereto;

(6) "juvenile correctional facility" means the same as prescribed by K.S.A. 38-1602, and amendments thereto;

(7) "sanctions house" means the same as prescribed by K.S.A. 38-1602, and amendments thereto;

(8) "institution" means the same as prescribed by K.S.A. 76-12a01, and amendments thereto; and

(9) "teacher" means and includes teachers, supervisors, principals, superintendents and any other professional employee in any public or private school.

COMMENT

Presently K.S.A. 21-3520.

~~21-3521. Severability clause.~~

If any provision of this act is held to be invalid or unconstitutional, it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional provision.

~~History: L. 1998, ch. 104, § 3; July 1.~~

21-~~3522~~ -517. Unlawful voluntary sexual relations.

(a) Unlawful voluntary sexual relations is engaging in voluntary: (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and the child and the offender are the only parties involved and are members of the opposite sex.

(b)(1) Unlawful voluntary sexual relations as provided in subsection (a)(1) is a severity level 8, person felony.

(2) Unlawful voluntary sexual relations as provided in subsection (a)(2) is a severity level 9, person felony.

(3) Unlawful voluntary sexual relations as provided in subsection (a)(3) is a severity level 10, person felony.

COMMENT

Presently K.S.A. 21-3522.

~~21-3523, 21-3524. Reserved.~~

21-~~3525~~ -518. Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice.

(a) The provisions of this section shall apply only in a prosecution for: (1) Rape, as defined by K.S.A. [21-3502], and amendments thereto; (2) indecent liberties with a child, as defined in K.S.A. [21-3503], and amendments thereto; (3) aggravated indecent liberties with a child, as defined in K.S.A. [21-3504], and amendments thereto; (4) criminal sodomy, as defined in subsections (a)(2)and (a)(3) of K.S.A. [21-3505] and amendments thereto; (5) aggravated criminal sodomy as defined by K.S.A. [21-3506], and amendments thereto; (6) aggravated indecent solicitation of a child, as defined in K.S.A. [21-3511], and amendments thereto; (7) sexual exploitation of a child as defined in K.S.A. [21-3516], and amendments thereto; (8) aggravated sexual battery, as defined in K.S.A. [21-3518], and amendments thereto; (9) incest, as defined in K.S.A. [21-3602], and amendments thereto; (10) aggravated incest, as defined in K.S.A. [21-3603], and amendments thereto; (11) indecent solicitation of a child, as defined in K.S.A. [21-3510] and amendments thereto; (12) aggravated assault, as defined in K.S.A. [21-3410], and amendments thereto, with intent to commit any crime specified above; (13) sexual battery, as defined in K.S.A. [21-3517], and amendments thereto; or (14) attempt, as defined in K.S.A. [21-3301], and amendments thereto, or conspiracy, as defined in K.S.A. [21-3302], and amendments thereto, to commit any crime specified above.

(b) Except as provided in subsection (c), in any prosecution to which this section applies, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The motion, affidavits and any supporting or responding documents of the motion shall not be made available for examination without a written order of the court except that such motion, affidavits and supporting and responding documents or testimony when requested shall be made available to the defendant or the defendant's counsel and to the prosecutor. The defendant, defendant's counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion, affidavits and any supporting or responding documents of the motion. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.

(c) In any prosecution for a crime designated in subsection (a), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.

(d) As used in this section, "complaining witness" means the alleged victim of any crime designated in subsection (a), the prosecution of which is subject to this section.

COMMENT

Presently K.S.A. 21-3525.