Statutory rape still requires proof of voluntary act

Richard Ney and David L. Miller won in State v. Dinkel, No. 113,705 (Kan. June 12, 2020), obtaining a remand hearing to consider possible ineffective assistance of counsel in a Saline County statutory rape prosecution. The charges stemmed from charges that Ms. Dinkel had intercourse with a 13-year old student on several occasions. Ms. Dinkel claimed that the student had actually raped her and then blackmailed her. The COA had affirmed Ms. Dinkel's convictions holding that because statutory rape has no mental culpability requirement and therefore that Ms. Dinkel's intent was irrelevant. The KSC disagreed:

We do not agree with the panel's conclusion that whether K.H. forcibly raped Dinkel was irrelevant. As Dinkel argues, even if there is no mental culpability requirement for the charged crime—a conclusion we do not address today—whether she was forcibly raped affected whether she committed the actus reus of the crime. Dinkel points to K.S.A. 2012 Supp. 21-5201, which requires voluntary conduct for criminal action.

. . . .

 No law criminalizes an omission with regard to the rape of a child. Consequently, Dinkel is guilty of rape of a child only if she "voluntarily engage[d] in conduct." K.S.A. 2012 Supp. 21-5201. Dinkel asserts that "[t]he victim of a rape does not voluntarily engage in sexual intercourse with the perpetrator." To decide whether Dinkel is correct, we must determine 10 what it means for conduct to be "voluntary."

. . . .

Together, these definitions indicate that voluntary conduct or a voluntary act is "personal behavior" "done by design or intention" or "[a] willed bodily movement." These unambiguous definitions support Dinkel's argument that her voluntariness in engaging in certain bodily movements is relevant to her charged crime. This leads us to the conclusion that any evidence K.H. physically forced the sexual intercourse and Dinkel did not intend any of the bodily movements that resulted in the sexual intercourse with K.H. is legally relevant to the voluntary act requirement of rape of a child under K.S.A. 2012 Supp. 21-5503(a)(3). The panel erred when it held otherwise.

The KSC clarified that the requirement for voluntariness as it relates to the actus reus of an offense is different than the culpable mental state that may (or may not) be required for the offense. It concluded that "even if Dinkel's rape defense was not relevant to a mental culpability requirement, it was relevant to the actus reus requirement."

Based on this conclusion, the KSC held that several new questions were presented related to whether Ms. Dinkel's trial attorney was ineffective for failing to argue the point. As a result, the KSC remanded to the district court to determine that question. The KSC retained jurisdiction and indicated it would take up the case again after it received the district court's findings on that question.

[Update: the district court held a hearing on September 3, 2020 and issued a decision on October 23, 2020. Ms. Dinkel filed a notice of appeal from that decision. The KSC ordered additional briefing and set the matter on its May 2021 argument docket.]