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State v. Flynn - 299 Kan. 1052, 329 P.3d 429 (2014)

Rule:

Kan. Stat. Ann. § 21-3502(a)(1)(A) (2007) proscribes all non-consensual sexual intercourse accomplished through force or fear, including non-consensual sexual intercourse occurring when a person communicates his or her withdrawal of consent after penetration and the other person continues the intercourse through compulsion. In cases concerning post-penetration withdrawal of consent, a district court must do more than instruct the jury on the statutory elements of rape as defined in § 21-3502(a)(1). Instead, when a defendant is charged with rape as defined in § 21-3502(a)(1) for an offense committed before July 1, 2011, and the evidence presented at trial suggests the victim initially consented but withdrew consent after penetration, the trial court must instruct the jury as to the elements of rape and give an additional instruction. Namely, the court must instruct the jury that the defendant may be convicted of rape even though consent is given to the initial penetration, but only if the consent is withdrawn, the withdrawal of consent is communicated to the defendant, and the defendant continues the intercourse through compulsion.

Facts:

On September 26, 2007, A.S. reported to friends, family, and police that Ira Flynn had raped her. The State ultimately prosecuted Flynn on six charges: one count each of kidnapping, aggravated kidnapping, and aggravated criminal sodomy and three counts of rape.

The Court granted the State's petition for review of the Court of Appeals' decision in State v. Flynn, 45 Kan. App. 2d 1113,  There, the panel majority reversed Ira Flynn's rape conviction and remanded for a new trial after concluding the district court committed clear error in failing to instruct the jury pursuant to State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006). In Bunyard, the Court held that K.S.A. 21-3502(a)(1) proscribes all nonconsensual sexual intercourse accomplished by force or fear. Thus, under this statute, a person may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration and the intercourse continues by force or fear.  Bunyard further held that in cases involving post-penetration withdrawal of consent, the defendant is entitled to a "reasonable time" in which to act after consent is withdrawn and communicated to the defendant. 281 Kan. at 413-16.

Judge Malone dissented in Flynn, distinguishing Bunyard and concluding the district court did not clearly err in failing to give the instruction. Judge Malone also encouraged the Court to reconsider Bunyard's conclusion the defendant is entitled to a "reasonable time" in which to act after consent is withdrawn and communicated to the defendant.

Issue:

Did the district court err in failing to give the instruction to the jury that the defendant may be convicted of rape even though consent is given to the initial penetration, but only if the consent is withdrawn, the withdrawal of consent is communicated to the defendant, and the defendant continues the intercourse through compulsion?

Answer:

Yes

Conclusion:

The court disapproved Bunyard's "reasonable time" holding because it was contrary to the plain language of the rape statute, Kan. Stat. Ann. § 21-3502(a)(1)(A) (2007), and without legal support. Because the jury heard evidence of both consensual intercourse and withdrawn consent, a modified Bunyard instruction was factually and legally appropriate; the district court's failure to give such an instruction was not harmless in light of the conflicting evidence in the case, the severity and number of charges filed against defendant, and the jury's verdict of guilt only on the rape count clearly involving the issue of withdrawn consent.

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