Bunyard overruled, but pattern rape instruction still insufficient

Heather R. Cessna won in State v. Flynn, No. 103,566 (July 11, 2014), obtaining a new trial in a Sumner County rape prosecution.  Mr. Flynn had obtained a new trial under State v. Bunyard (blogged about here) because the district court failed to instruct the jury that "the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant." The KSC revisited the question and held that the Bunyard Court's decision regarding a "reasonable time to withdraw" was contrary to the statute and disapproved the case.

But the KSC still held that the pattern rape instruction was insufficient:

despite our disapproval of Bunyard's "reasonable time to withdraw" language and its definition of "reasonable time," we reaffirm its conclusion that when evidence is presented involving post-penetration withdrawal of consent, the trial court must do more than simply instruct the jury on the statutory elements of rape. Instead, in such cases, in addition to the rape elements instruction, the trial court must instruct the jury that rape may occur even though consent was given to the initial penetration, but only if the consent is withdrawn, that withdrawal is communicated to the defendant, and the sexual intercourse continues when the victim is overcome by force or fear.

Because the jury had not been informed of these requirements and because the KSC held that the absence of these requirements was not harmless, it reversed and remanded for a new trial.