State v. Brooks , 298 Kan. 672 ( 2014 )

Johnson, J.,

dissenting: I agree with that part of my colleague’s dissent that opines that the evidence in this case is insufficient for a rational jury to find that the sexual intercourse between the defendant, Brooks, and the victim, J.P., occurred because J.P. was overcome with fear. I would simply add two thoughts about the majority’s view of the overcome-by-fear element.

First, making the overcome-by-fear element a purely subjective determination, such that a defendant might not have known of the existence or degree of his sexual partner’s phobia(s), could raise due process concerns. Second, I fear that the majority’s interpretation—equating a woman who bargains away the potential for public embarrassment with a woman whose resistance to being raped has truly been overcome by an actual and immediate fear— might seem to trivialize the trauma and sense of violation that must surely accompany the latter actual-fear scenario.

Where I part company with both the majority and tire dissent is with their apparent belief that the evidence established, beyond a reasonable doubt, the threshold requirement that J.P. was “a person who [did] not consent to the sexual intercourse.” K.S.A. 2005 Supp. 21-3502(a). In my view, the evidence established that J.P. did consent to having sexual intercourse with Brooks. The majority is misdirected by J.P.’s apparent attempt to thwart Brooks’ blackmailing scheme by telling him that she did not want to have sex and that the sex would be against her will. When that ploy failed, J.P. understood, as she recited at trial, that there was nothing else she could do, short of having sex with Brooks, to keep him from carrying out his threat to disclose her affair. Thus, she begrudgingly consented to have sex with Brooks in order to buy his silence. In other words, J.P. made the volitional choice to have sex with Brooks rather than having her extramarital affair disclosed to her boss and her paramour s spouse. That circumstance refutes the nonconsen-sual element of rape.

In sum, the State proved that Brooks committed a reprehensible act, but it did not prove that he committed the statutory crime of rape. I would affirm the Court of Appeals and reverse the rape conviction.

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