The state did not contest the factual basis for these findings, but contended they were should not be used as aggravating factors as a matter of law. The COA disagreed:
Here, the district court granted a downward durational departure based on the victim's comments that she encouraged the relationship. This was supported by a handwritten letter from H.H., indicating that she had encouraged Stanley's criminal conduct. Stanley had also alleged that H.H. lied about her age at the time of the sexual encounter. Furthermore, H.H. specifically asked the district court for leniency in sentencing Stanley. As stated by the court in [State v. Minor, 268 Kan. 292, 997 P.2d 648 (2000), although a minor female victim's cooperation leading up to a criminal act is not a defense to the charge, such facts may be properly considered by the sentencing court in imposing punishment. Under the facts of this case, we conclude the district court's finding that the victim encouraged the relationship constituted a substantial and compelling reason for the departure sentence.
After Minor, this seems clearly correct.
[Update: the state did not file a PR and the mandate issued on August 29, 2008.]