MEMORANDUM
TO:
Recodification Subcommittee
FROM: Tom Stacy
RE:
Person offenses
DATE:
I. Organization & Style.
A. Organizing principles. For purposes of clarity, the following two organizational principles could prove useful. First, place offenses of a like kind together. For instance, the main battery and assault offenses are separated from battery against a school official, K.S.A. 21-3443. Such fragmentation makes the Code difficult to follow. Second, within categories, array offenses from more to less serious. This would make the ordering of our person provisions consistent with that of our homicide provisions, which begin with capital murder and proceed through other homicide offenses in order of severity.
II. Substance.
A. Special status victims. Our provisions create separate and more serious assault and battery offenses when the victim has some special status, such as a law enforcement officer, family member, school employee, or etc. These provisions raise organizational and substantive issues.
1. Retain Separate Provisions for Special Status Victims vs. Include Special Status Victims in General Assault & Battery Provisions. As an organizational matter, we should consider including special status victims in the general assault and battery provisions. As it stands, our Code has separate provisions for general assault and battery offenses and for each special victim offense. The potential advantages of such a reorganization would be twofold. First, it would simplify the Code by consolidating separate provisions. Second, it would eliminate potential issues over the relationship between the special status provisions and the general assault and battery provisions. For instance, mistreatment of a dependent adult causing injury is a severity level 6 person felony. An argument could be made that this offense covers all inflictions of injury on such victims, including serious injury. On this view, the offense would subsume not only simple battery but also aggravated battery of such victims.
2. Special status victim as an aggravating
circumstances for only some vs. all assault & battery offenses. The victim’s status as a law enforcement
officer increases the severity of all assault and battery offenses: assault, battery, aggravated assault, and
aggravated battery. In contrast, other
special status victims aggravate the severity of only one or some assault and
battery offenses. For instance, battery
of a family member constitutes “domestic
battery,” an offense that is more serious than battery for some purposes. K.S.A. 21-3412a. But the offenses of aggravated battery and aggravated
assault are not increased in severity when the victim is a family member.
We should consider whether to treat family member, school employee, and dependent adult victims as aggravating the severity of all assault and battery offenses. The offenses for law enforcement victims, which generally increase the severity one level, could furnish a general model for such a change. Of course, exceptions to this general treatment – such as the special provisions for domestic battery recidivists and perhaps differential treatment of battery against correctional and against other law enforcement officers (see #3 below) -- may be warranted.
Arguments in favor of such a change include: i) It would make the Code more coherent and proportional by generally treating all special status victims in the same fashion. ii) Given the proposals we have previously endorsed respecting family member victims, it would make the assault and battery provisions more coherent with the homicide and sex offense provisions. iii) It would send a more consistent and forceful message about the protected status of the victims in question.
An argument against such a change is that whereas the punishment for simple assault and/or battery is not adequate given the special nature of victims such as family members, etc., the existing offense severity levels for general aggravated battery and aggravated assault offenses are adequate for all victims (except for law enforcement victims).
3.
Differential treatment of types of
law enforcement officers.
In the interest of coherence and proportionality, we should consider adopting one of two alternatives. First, we could propose distinguishing between correctional and other law enforcement officers for both battery and assault. A practical reason exists for increasing the punishment for batteries against correctional officers: The offense must result in prison time to have significance because the offender is already in custody. This rationale would seem to apply to assaults against correctional officers as well as batteries. Second, we could propose treating correctional and other law enforcement officers in the same way. All the law enforcement victim offenses operate in this way except for battery against a law enforcement officer. The practical reason mentioned above suggests that equalization should be accomplished by increasing the offense severity for assaults and batteries against law enforcement officers to the level that currently applies only to correctional officers. Treating all law enforcement officers in the same way would facilitate simplification of battery against a law enforcement officer. That offense could simply incorporate K.S.A. 21-3110(10)’s definition of law enforcement officer, as assault does. The lengthy verbiage distinguishing among types of law enforcement officers could be eliminated.
B. Stalking.
1. Definition of the offense. Although the Kansas Supreme Court has held
that stalking is not unconstitutionally vague, State v. Rucker, 267
2. Severity of the offense. A prosecutor who handles domestic violence cases contacted me to suggest an increase in stalking’s offense severity. It is currently a level 10 person felony, which increases to severity level 9 if the terms of a protective order have been violated and level 8 if there has been a prior conviction for stalking the same victim within seven years. Unless the offender’s criminal history includes two person felonies, the guidelines prescribe presumptive probation for all of the above.
The prosecutor’s arguments in favor of increasing stalking’s offense severity are: i) Probation is not commensurate with the significant harm stalking inflicts on its victims, which typically involves a disabling fear or terror; ii) A strong interest exists in incapacitating the offender because stalking often precedes serious acts of violence, including homicide; iii) While an offender who stalks in defiance of a protective order or after a prior conviction has demonstrated an inability to conform with the law and a consequent need for incapacitation, the existing increase in offense severity still generally places the offense in the presumptive probation portion of the sentencing grid.
It is also worth pointing out that it is unlikely that cases of stalking can be successfully prosecuted as either aggravated assault (given the narrowness of that offense’s definition) or attempted aggravated battery (given the need to show an intent, e.g., to inflict great bodily harm).
A 1998 table summarizing how
different States grade stalking can be found online at: http://www.multistalkervictims.org/laws/short-summary.htm#N_1_. Without doing significant further research,
it is difficult to tell whether our punishment levels are less severe than
those used by most other States. The
C. Reckless Endangerment. Under our law, one who recklessly inflicts
harm is guilty of battery or aggravated battery, depending on whether great
bodily harm is inflicted and on whether a deadly weapon is used. In contrast, when no harm actually results, one
who has recklessly exposed others to a substantial and unjustifiable risk of
harm is generally not guilty of any offense.
Neither attempted battery nor attempted aggravated battery cover such
conduct. In
We should consider whether to propose that our Code include an offense of reckless endangerment. Such an offense may be subdivided into more and less serious offenses, depending on whether there is a risk of great bodily harm, the number of victims, and the vulernability or protected status of the victim. According to one count, thirty six States have a general reckless endangerment offense. Susan B. Gellman & Frederisk M. Lawrence, Agreeing to Agree: A Proponent and Opponent of Hate Crime Laws Reach for Common Ground, 41 Harv. J. Legis. 421, 444 (2004)(appendix).
The arguments for adoption of such an offense include: i) An actor who creates unjustifiable risk of harm possesses culpability that justifies criminal punishment regardless of whether harm actually results, which is a fortuity. ii) Such an offense facilitates simplification of the Code by eliminating the need for the numerous offenses that criminalize creation of particular types of risks. Adoption of a properly drafted reckless endangerment offense could allow us to eliminate the following offenses, or a significant portion thereof:
· Hazing;
· exposure to a life-threatening communicable disease;
· endangering a child, K.S.A. 21-3608;
· permitting a dangerous animal to be at large, K.S.A. 21-3418;
· criminal threat, K.S.A. 21-3419(a)(2); and
· mistreatment of a confined person, K.S.A. 21-3425.
iii) Similarly, a general reckless endangerment offense would contribute to simplification by removing future pressure to create new offenses that criminalize risk creation in additional contexts as a perceived need arises. iv) A general endangerment offense would promote the goal of proportionality by treating risk creation in a more consistent fashion than do particular offenses created on an ad hoc basis.
Arguments against adoption of a general reckless endangerment offense include: i) When no harm actually results, the need for criminal punishment diminishes. ii) Offenses that criminalize only particular kinds of risk creation better promote proportionality because the need for criminalization and the severity of the conduct depends on the particular context.
D. Relationship Between Offenses.
1. Attempted battery vs. assault offenses. An offender who threatens harm may or may not satisfy the elements of attempted battery or aggravated battery and of assault or aggravated assault. May or should the offender be punished for both or for only one? I flag this an issue potentially worthy of attention, research, and consideration.
2. Criminal threat vs. assault. Under K.S.A. 21-3408, assault is “intentionally placing another person in reasonable apprehension of immediate bodily harm.” Under K.S.A. 21-3419(a)(1), one kind of criminal threat is “any threat to commit violence communicated with intent to terrorize another . . . .”
These two offenses seem
identical. In State v. Meinert, 31
One alternative would be to eliminate this portion of the criminal threat offense, leaving such conduct to be punished as an assault. Another option would be define this kind of “criminal threat” as involving an intent to terrorize a group of persons. This would harmonize with the other kinds of “criminal threats”, which involve a threat of mass harm; distinguish such threats from assaults; and justify the increase in offense severity.
# # #
Appendix of Provisions
21-3408. Assault. Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.
Assault is a class C person misdemeanor.
21-3409. 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.
21-3410. Aggravated assault. Aggravated assault is an assault, as defined in K.S.A. 21-3408 and amendments thereto, committed:
(a) With a deadly weapon;
(b) while disguised in any manner designed to conceal identity; or
(c) with intent to commit any felony.
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.
21-3411. 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.
21-3412.
(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)
21-3412a. 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.
(c) As used in this section:
(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.
21-3413.
(a) (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)
(c) As used in this section:
(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
(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.
21-3414. 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.
21-3415. 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.
21-3419. 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).
21-3419a. 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.
21-3420. Kidnapping. Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage;
(b) to facilitate flight or the commission of any crime;
(c) to inflict bodily injury or to terrorize the victim or another; or
(d) to interfere with the performance of any governmental or political function.
Kidnapping is a severity level 3, person felony.
21-3421. Aggravated kidnapping. Aggravated kidnapping is kidnapping, as defined in K.S.A. 21-3420 and amendments thereto, when bodily harm is inflicted upon the person kidnapped.
Aggravated kidnapping is a severity level 1, 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.
21-3424. 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
(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.
Criminal restraint is a class A person misdemeanor.
21-3425. 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.
21-3426. Robbery. Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.
Robbery is a severity level 5, person felony.
21-3427. Aggravated robbery. 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.
Aggravated robbery is a severity level 3, person felony.
21-3434. 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
21-3435. 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.
(c) Violation of this section is a severity level 7, person felony.
21-3437. 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.
21-3438. 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, 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, 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, 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.
21-3440. 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
21-3441. 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.
(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) (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
21-3443.
(b)
(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
21-3444. 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
21-3445. 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.
21-3742. Throwing or otherwise casting rocks or other objects onto street, highway or railroad right-of-way or railroad property. (a) Any person who intentionally throws, pushes, pitches or otherwise casts any rock, stone or other object, matter or thing onto a street, road, highway, railroad right-of-way, or upon any vehicle, engine or car or any train, locomotive, railroad car, caboose, rail-mounted work equipment or rolling stock thereon, is guilty of a class B nonperson misdemeanor.
(b) Any person violating subsection (a) who damages any vehicle, engine or car or any train, locomotive, railroad car, caboose, rail-mounted work equipment or rolling stock lawfully on the street, highway or railroad right-of-way by the thrown or cast rock, stone or other object is guilty of a class A nonperson misdemeanor.
(c) Any person violating subsection (a) who injures another person on the street, road, highway or railroad right-of-way is guilty of a severity level 7, person felony.
(d) In any case where a vehicle, engine or car or any train, locomotive, railroad car, caboose, rail-mounted work equipment or rolling stock is damaged by a person violating subsection (a) and a person is injured either as a result of the cast or thrown object or from injuries incurred as a result of damage to the vehicle in which a person was a passenger when struck by such object, the person throwing or casting the rock, stone or other object causing the damage and injury is guilty of a severity level 6, person felony.
21-4217. Criminal discharge of a firearm. (a) Criminal discharge of a firearm is the discharge of any firearm:
(1) Upon any land or nonnavigable body of water of another, without having obtained permission of the owner or person in possession of such land; or
(2) upon or from any public road, public road right-of-way or railroad right-of-way that adjoins land of another without having first obtained permission of the owner or person in possession of such land.
(b) This section shall not apply to any of the following:
(1) Law enforcement officers, or any person summoned by any such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer;
(2) wardens, superintendents, directors, security personnel and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crime, while acting within the scope of their authority;
(3) members
of the armed services or reserve forces of the
(4) watchmen, while actually engaged in the performance of the duties of their employment;
(5) private detectives licensed by the state to carry the firearm involved, while actually engaged in the duties of their employment;
(6) detectives or special agents regularly employed by railroad companies or other corporations to perform full-time security or investigative service, while actually engaged in the duties of their employment; or
(7) the state fire marshal, the state fire marshal's deputies or any member of a fire department authorized to carry a firearm pursuant to K.S.A. 31-157 and amendments thereto, while engaged in an investigation in which such fire marshal, deputy or member is authorized to carry a firearm pursuant to K.S.A. 31-157 and amendments thereto.
(c) Criminal discharge of a firearm is a class C misdemeanor.
[1] Under our law, stalking may constitute attempted aggravated battery when an intent to inflict great bodily harm exists. Whether it does depends on whether the stalking goes sufficiently beyond preparation to satisfy the act required for attempt liability. Attempted aggravated battery is level 6 person felony for which the guidelines prescribe presumptive probation for a first-time offender but two or more years of imprisonment when the offender has criminal history of any significance.