Anyway, on the merits, the KSC found misconduct because the prosecutor argued that any force, including the force used to pentrate was sufficient for rape. The COA had found that the statement was misconduct, but harmless. The KSC applied the three part test from Tosh and concluded that the misconduct required reversal. In particular, the KSC noted that there was no evidence of ill will on the part of the prosecutor, but reversed under the other factors.
The Court also considered the claim related to a jury question regarding withdrawal of consent post-penetration. The jury asked a question whether such facts can constitute rape. The prosecutor asked that the jury be told "yes" and the defendant asked that the jury be told "no." The district court referred the jurors back to the instruction. The KSC held that
Under the circumstances of this case, we conclude that the trial court's answer to a question posed by the jury was insufficient to properly instruct the jury how to consider this unique case of first impression. The problem with the trial court's response is that it failed to address the question asked by the jury.That is a pretty big holding in itself. In this somewhat unique circumstance, it was insufficient to simply rely on the instructions already given--the district court should have responded to the jury's question in a real way. The KSC sided with states that have said a rape conviction can be proved by showing post-penetration withdrawal of consent, but went on to hold that
In the case of consensual intercourse and withdrawn consent, we agree that the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant. However, we conclude that the jury should determine whether the time between withdrawal of consent and the interruption of intercourse was reasonable. This determination must be based upon the particular facts of each case, taking into account the manner in which consent was withdrawn.I guess good things come to those who wait, Paige and Dan!