Author: Shelby Sternberg, Comments Editor

State v. Dinkel, No. 113,705 (Kan., June 12, 2020)

Issue:  K.S.A. 21-5503(a)(3) has no requirement for mental culpability for rape when it involves sexual intercourse with a child under 14, which is unique from every other section.  However, K.S.A. 21-5201 requires voluntary conduct for all criminal action.  Does K.S.A. 21-5503(a)(3) mean that any defense to sexual intercourse with a child under 14 showing culpability is irrelevant?

Answer:  No. Because the actus reus element requires the act to be voluntary, defendants may offer evidence that they did not voluntarily engage in sexual intercourse as a defense to the criminal charge.

Facts:  Dinkel, a middle school counselor, was charged with rape of a 13-year-old student at her school, K.H.  Dinkel testified that her first sexual encounter with K.H. was when he forcibly raped her.  A Facebook messaged allegedly sent by K.H. showed K.H. blackmailing Dinkel into further sexual encounters.  The jury convicted Dinkel of two counts of rape of a child under 14.  The Kansas Supreme Court granted review to determine if the panel erred when it concluded a defendant’s intent is irrelevant to the crime of rape of a child.

Discussion: Because there was no mental culpability language in K.S.A. 21-5503(a)(3) (although the language is featured in every other section), the Court of Appeals held there was no mental culpability requirement for the rape of a child under 14 years old.  As such, the panel held all of Dinkel’s defenses were irrelevant.  The Supreme Court of Kansas reversed, citing K.S.A. 21-5201 as a general rule that all crimes, whether requiring mental culpability or not, still require voluntariness. Dinkel could offer evidence that she did not voluntarily engage in sexual intercourse to prove she did not meet the actus reus requirement of the crime.  

Key Authorities:

Kan. Stat. Ann. 2012 Supp. 21-5503 (defining rape).

Kan. Stat. Ann. 2012 Supp. 21-5501(a) (defining sexual intercourse).

Kan. Stat. Ann. 2012 Supp. 21-5202 (defining mental culpability requirements for criminal actions).

Kan. Stat. Ann. 2012 Supp. 21-5201 (requiring voluntary acts when committing a crime).