Wherefore Art Thou Romeo? Kansas Court of Appeals Finds the Romeo and Juliet Defense Inapplicable to K.S.A. § 21-5510(a)(4)

State v. Grant, No. 126,491 (Kan. Ct. App. Sept. 13, 2024).

Author: Hannah Levy, Staff Editor

Issue: Does the Romeo and Juliet defense apply to attempted sexual exploitation of a minor as defined under Kan. Stat. Ann. § 21-5510(a)(4)?

Answer: No.  The Romeo and Juliet defense does not apply to a visual depiction of a minor engaged in sexually explicit conduct.

Facts: Robert Cameron Grant, then 18 years old, pled guilty to two counts of attempted sexual exploitation of a child for possessing sexually explicit nude photos of his then 16 year old girlfriend.  Grant filed a postsentence motion to withdraw his guilty pleas, asserting his counsel did not advise him of a statutory defense to the charges, Kan. Stat. Ann. § 21-5610(f), commonly known as the Romeo and Juliet defense.  The Sedgwick District Court denied the motion.  Grant then appealed.

Discussion: Under Kansas law, the Romeo and Juliet defense provides that it is not necessarily unlawful for an individual under 19 years old to possess a visual depiction of a nude minor who is at least 16 years old.^[1]  The Kansas Court Appeals interpreted Kan. Stat. Ann. 21-5510(a)(4) to inherently preclude the defense.  Kan. Stat. Ann. § 21-5510(a)(4) involves “promoting any performance that includes sexually explicit conduct by a child[.]”  The Romeo and Juliet defense applies to visual depictions of a child, a definition that does not apply when the child is engaging in sexually explicit conduct per Kan. Stat. Ann. § 21-5611(f).  Thus, the defense was inapplicable to Grant.  Judgment affirmed.

Key Authorities: Kan. Stat. Ann. § 21-5510(a)(4) (2016); Kan. Stat. Ann. § 21-5610(f) (2016); Kan. Stat. Ann. § 21-5611(f) (2016).

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^[1]  Kan. Stat. Ann. § 21-5610(f) (2016).