Posted on February 5, 2025
A Limitation on Lawrence: Why Lawful Consent is not a Legal Defense to Child Pornography Possession in Kansas
State v. Sanders, No. 126,406, 2025 WL 63422 (Kan. App. 2025).
Author: Lucas Dorrell, Staff Editor
Issue: Does K.S.A. § 21-5510(a)—which criminalizes the creation and possession of child pornography—unconstitutionally criminalize “private sexual conduct”[1] under the 14th Amendment Substantive Due Process Clause and Lawrence v. Texas, when the victim is above the age of consent but nonetheless a minor.
Answer: No. Creating and distributing child pornography is not a constitutionally protected liberty interest under the Substantive Due Process Clause, even when the victim is of legal age to consent to sexual intercourse.
Facts: In 2014, Defendant Jeffery Sanders, 41, was a volleyball coach at a facility where Jane Doe, 14, played. Sanders began communicating with Doe over Snapchat. Soon after Doe turned 16-years-old, they began having sexual intercourse, which Sanders recorded. Later, a jury convicted Sanders of three counts of sexual exploitation of a child under K.S.A. § 21-5510(a)(1)–(2). Sanders appealed, arguing that because Kansas sets the age of consent for intercourse at 16, the sexual images he possessed were “private, consensual [sexual] conduct”[2] under Lawrence v. Texas and protected by the Substantive Due Process Clauses of the U.S. and Kansas Constitutions.
Discussion: The Kansas Court of Appeals held K.S.A. §§ 21-5510(a)(1)–(2) to be constitutional because “Lawrence did not recognize a broadly defined fundamental right to engage in all forms of private sexual conduct.”[3] First, the court explained that Lawrence explicitly limited its applicability to intimate acts “involv[ing] minors . . . [or] persons who might be injured or coerced,” and thus did not apply here.[4] Then, the court adopted the Nebraska Supreme Court’s analysis in State v. Senters, a similar case which held Nebraska could criminalize child pornography depicting victims of lawful age to consent if the law served a legitimate state interest.[5] Applying traditional rational basis review, the Nebraska court held that Nebraska had a legitimate interest in criminalizing the creation and possession of child pornography because it “is often associated with child abuse and exploitation” and has the “potential for reputational harm.”[6]
Key Authorities: Lawrence v. Texas, 539 U.S. 558 (2003); K.S.A. §§ 21-5510(a)(1)–(2); State v. Senters 699 N.W.2d 810 (Neb. 2005).
[1] Lawrence v. Texas, 539 U.S. 558, 578 (2003).
[2] Id. at 585.
[3] State v. Sanders, No. 126,406, 2025 WL 63422, at *16 (Kan. App. 2025) (citing Lawrence v. Texas).
[4] State v. Sanders, No. 126,406, 2025 WL 63422, *12–*13 (Kan. App. 2025) (citing Lawrence v. Texas, 539 U.S. 558, 578 (2003).
[5] State v. Senters, 699 N.W.2d 810, 819 (Neb. 2005).
[6] Id. at 816–17.
