K.S.A. Chapter 21 Article 52

PRINCIPLES OF CRIMINAL LIABILITY

Current through End of 2012 Legislative Session

21-5201          Requirement of voluntary act or omission.

21-5202          Culpable mental state; definition of intentionally, knowingly, recklessly.

21-5203          Guilt without culpable mental state.

21-3204          Culpable mental state; exclusions.

21-5205          Intoxication.

21-5206          Compulsion.

21-5207          Ignorance or mistake.

21-5208          Entrapment.

21-5209          Defense of lack of mental state.

21-5210          Liability for crimes of another.

21-5211          Corporations; criminal responsibility.

21-5212          Individual liability for corporate crime.

21-5220          Use of force; construction and application.

21-5221          Use of force; definitions.

21-5222          Same; defense of a person; no duty to retreat.

21-5223          Same; defense of dwelling, place of work or occupied vehicle; no duty to retreat.

21-5224          Use of force; presumptions.

21-5225          Same; defense of property other than a dwelling, place of work or occupied vehicle.

21-5226          Same; by an aggressor.

21-5227          Same; law enforcement officer making arrest.

21-5228          Same; private person making arrest.

21-5229          Same; resisting arrest.

21-5230          Same; no duty to retreat.

21-5231          Same; immunity from prosecution or liability; investigation.

21-5201. Requirement of voluntary act or omission.

            (a) A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession.

            (b) A person who omits to perform an act does not commit a crime unless a law provides that the omission is an offense or otherwise provides that such person has a duty to perform the act.

History: L. 2010, ch. 136, § 12; July 1, 2011.

21-5202. Culpbable mental state; definition of intentionally, knowingly, recklessly.

            (a) Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed "intentionally," "knowingly" or "recklessly."

            (b) Culpable mental states are classified according to relative degrees,

from highest to lowest, as follows:

            (1) Intentionally;

            (2) knowingly;

            (3) recklessly.

            (c) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.

            (d) If the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

            (e) If the definition of a crime does not prescribe a culpable mental state, but one is nevertheless required under subsection (d), "intent," "knowledge" or "recklessness" suffices to establish criminal responsibility.

            (f) If the definition of a crime prescribes a culpable mental state that is sufficient for the commission of a crime, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the crime, unless a contrary purpose plainly appears.

            (g) If the definition of a crime prescribes a culpable mental state with regard to a particular element or elements of that crime, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the crime unless otherwise provided.

            (h) A person acts "intentionally", or "with intent," with respect to the nature of such person’s conduct or to a result of such person’s conduct when it is such person’s conscious objective or desire to engage in the conduct or cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as "intentionally" or "with intent" are specific intent crimes. A crime may provide that any other culpability requirement is a specific intent.

            (i) A person acts "knowingly", or "with knowledge," with respect to the nature of such person’s conduct or to circumstances surrounding such person’s conduct when such person is aware of the nature of such person’s conduct or that the circumstances exist. A person acts "knowingly," or "with knowledge," with respect to a result of such person’s conduct when such person is aware that such person’s conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as "knowingly," "known," or "with knowledge" are general intent crimes.

            (j) A person acts "recklessly" or is "reckless", when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

History: L. 1969, ch. 180, § 21-3201; L. 1992, ch. 298, § 2; L. 1993, ch. 291, § 17; L. 2010, ch. 136, § 13; July 1, 2011.

21-5203. Guilt without culpable mental state.

            A person may be guilty of a crime without having a culpable mental state if the crime is:

            (a) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described;

            (b) a felony and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described;

            (c) a violation of K.S.A. 8-1567 or 8-1567a, and amendments thereto;

            (d) a violation of K.S.A. 8-2,144, and amendments thereto; or

            (e) a violation of [Section 2 of 2012 SB 60], and amendments thereto; or

            (f) a violation of K.S.A. 22-4901 et seq., and amendments thereto.

History: L. 1969, ch. 180, § 21-3202; L. 2010, ch. 136, § 14; L. 2011, ch. 105, § 34, L. 2012, ch. 172, § 27; July.

21-5204. Culpable mental state; exclusions.

            Proof of a culpable mental state does not require proof:

            (a) Of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute; or

            (b) that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which the accused is charged.

History: L. 1969, ch. 180, § 21-3202; L. 2010, ch. 136, § 15; July 1, 2011.

21-5205. Intoxication.

            (1) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.

            (2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.

History: L. 1969, ch. 180, § 21-3208; L. 2010, ch. 136, § 16; July 1, 2011.

21-5206. Compulsion.

            (1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.

            (2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.

History: L. 1969, ch. 180, § 21-3209; L. 2010, ch. 136, § 17; July 1, 2011.

21-5207. Ignorance or mistake.

            (1) A person's ignorance or mistake as to a matter of either fact or law, except as provided in section 21-3202, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.

            (2) A person's reasonable belief that his conduct does not constitute a crime is a defense if:

            (a) The crime is defined by an administrative regulation or order which is not known to him and has not been published in the Kansas administrative regulations or an annual supplement thereto, as provided by law; and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or

            (b) He acts in reliance upon a statute which later is determined to be invalid; or

            (c) He acts in reliance upon an order or opinion of the supreme court of Kansas or a United States appellate court later overruled or reversed;

            (d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.

            (3) Although a person's ignorance or mistake of fact or law, or reasonable belief, as described in subsection (2) of this section, is a defense to the crime charged, he may be convicted of an included crime of which he would be guilty if the fact or law were as he believed it to be.

History: L. 1969, ch. 180, § 21-3203; L. 2010, ch. 136, § 18; July 1, 2011.

21-5208. Entrapment.

            A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:

            (a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or

            (b) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.

History: L. 1969, ch. 180, § 21-3210; L. 2010, ch. 136, § 19; July 1, 2011.

21-5209. Defense of lack of mental state.

            It shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged. Mental disease or defect is not otherwise a defense.

History: L. 1995, ch. 251, § 20; L. 2010, ch. 136, § 20; July 1, 2011.

21-5210. Liability for crimes of another.

            (1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.

            (2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.

            (3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.

History: L. 1969, ch. 180, § 21-3205; L. 1990, ch. 100, § 1; L. 2010, ch. 136, § 30; July 1, 2011.

21-5211. Corporations; criminal responsibility.

            (1) A corporation is criminally responsible for acts committed by its agents when acting within the scope of their authority.

            (2) "Agent" means any director, officer, servant, employee or other person who is authorized to act in behalf of the corporation.

History: L. 1969, ch. 180, § 21-3206; L. 2010, ch. 136, § 31; July 1, 2011.

21-5212. Individual liability for corporate crime.

            (1) An individual who performs criminal acts, or causes such acts to be performed, in the name of or on behalf of a corporation is legally responsible to the same extent as if such acts were in his own name or on his own behalf.

            (2) An individual who has been convicted of a crime based on conduct performed by him for and on behalf of a corporation is subject to punishment as an individual upon conviction of such crime, although a lesser or different punishment is authorized for the corporation.

History: L. 1969, ch. 180, § 21-3207; L. 2010, ch. 136, § 32; July 1, 2011.

21-5220. Use of force; construction and application.

            The provisions of K.S.A. 2015 Supp. 21-5220 through 21-5230, and amendments thereto, are to be construed and applied retroactively.

History: L. 2010, ch. 124, § 1; L. 2011, ch. 30, § 3; July 1.

21-5221. Use of force; definitions.

            (a) As used in article 32 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, K.S.A. 2015 Supp. 21-5202 through 21-5208, 21-5210 through 21-5212, and 21-5220 through 21-5231, and K.S.A. 2015 Supp. 21-3212a, 21-3220 and 21-3221, and amendments thereto:

            (1) "Use of force" means any or all of the following directed at or upon another person or thing:

            (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person;

            (B) the presentation or display of the means of force; or

            (C) the application of physical force, including by a weapon or through the actions of another.

            (2) "Use of deadly force" means the application of any physical force described in paragraph (1) which is likely to cause death or great bodily harm to a person. Any threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon, shall not constitute use of deadly force, so long as the actor's purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another or to affect a lawful arrest.

            (b) An actor who threatens deadly force as described in subsection (a)(1) shall be subject to the determination in subsection (a) of K.S.A. 21-3211, prior to its repeal, or subsection (a) of K.S.A. 2015 Supp. 21-5222, and amendments thereto, and not to the determination in subsection (b) of K.S.A. 21-3211, prior to its repeal, or subsection (b) of K.S.A. 2015 Supp. 21-5222, and amendments thereto.

History: L. 2010, ch. 124, § 2; L. 2011, ch. 30, § 4; July 1.

21-5222. Same; defense of a person; no duty to retreat.

            (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.

            (b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

            (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.

History: L. 1969, ch. 180, § 21-3211; L. 2006, ch. 194, § 3; L. 2010, ch. 124, § 4; L. 2010, ch. 136, § 21; L. 2011, ch. 30, § 7, July 1.

21-5223. Same; defense of dwelling, place of work or occupied vehicle; no duty to retreat.

            (a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such use of force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling, place of work or occupied vehicle.

            (b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling, place of work or occupied vehicle if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or another.

            (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling, place of work or occupied vehicle.

History: L. 1969, ch. 180, § 21-3212; L. 2006, ch. 194, § 4; L. 2010, ch. 124, § 5; L. 2010, ch. 136, § 22; L. 2011, ch. 30, § 8, July 1.

21-5224. Use of force; presumptions.

            (a) For the purposes of K.S.A. 21-3211 and 21-3212, prior to their repeal, or K.S.A. 2015 Supp. 21-5222 and 21-5223, and amendments thereto, a person is presumed to have a reasonable belief that deadly force is necessary to prevent imminent death or great bodily harm to such person or another person if:

            (1) The person against whom the force is used, at the time the force is used:

            (A) Is unlawfully or forcefully entering, or has unlawfully or forcefully entered, and is present within, the dwelling, place of work or occupied vehicle of the person using force; or

            (B) has removed or is attempting to remove another person against such other person's will from the dwelling, place of work or occupied vehicle of the person using force; and

            (2) the person using force knows or has reason to believe that any of the conditions set forth in paragraph (1) is occurring or has occurred.

            (b) The presumption set forth in subsection (a) does not apply if, at the time the force is used:

            (1) The person against whom the force is used has a right to be in, or is a lawful resident of, the dwelling, place of work or occupied vehicle of the person using force, and is not subject to any order listed in K.S.A. 21-3843, prior to its repeal, or K.S.A. 2015 Supp. 21-5924, and amendments thereto, that would prohibit such person's presence in the property;

            (2) the person sought to be removed is a child, grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the force is used;

            (3) the person using force is engaged in the commission of a crime, attempting to escape from a location where a crime has been committed, or is using the dwelling, place of work or occupied vehicle to further the commission of a crime; or

            (4) the person against whom the force is used is a law enforcement officer who has entered or is attempting to enter a dwelling, place of work or occupied vehicle in the lawful performance of such officer's lawful duties, and the person using force knows or reasonably should know that the person who has entered or is attempting to enter is a law enforcement officer.

History: L. 2010, ch. 124, § 3; L. 2011, ch. 30, § 2; July 1.

21-5225. Same; defense of property other than a dwelling, place of work or occupied vehicle.

            A person who is lawfully in possession of property other than a dwelling, place of work or occupied vehicleis justified in the use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such use of force as a reasonable person would deem necessary to prevent or terminate the interference may intentionally be used.

History: L. 1969, ch. 180, § 21-3213; L. 2010, ch. 124, § 6; L. 2010, ch. 136, § 23; L. 2011, ch. 30, § 9, July 1.

21-5226. Same; by an aggressor.

            The justification described in K.S.A. 21-3211, 21-3212 and 21-3213, prior to their repeal, or K.S.A. 2015 Supp. 21-5222, 21-5223 and 21-5225, and amendments thereto, is not available to a person who:

            (a) Is attempting to commit, committing or escaping from the commission of a forcible felony;

            (b) initially provokes the use of any force against such person or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or

            (c) otherwise initially provokes the use of any force against such person or another, unless:

            (1) Such person has reasonable grounds to believe that such person is in imminent danger of death or great bodily harm, and has exhausted every reasonable means to escape such danger other than the use of deadly force; or

            (2) in good faith, such person withdraws from physical contact with the assailant and indicates clearly to the assailant that such person desires to withdraw and terminate the use of such force, but the assailant continues or resumes the use of such force.

History: L. 1969, ch. 180, § 21-3214; L. 2010, ch. 124, § 7; L. 2010, ch. 136, § 24; L. 2011, ch. 30, § 10, July 1.

21-5227. Same; law enforcement officer making arrest.

            (a) A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of the use of any force which such officer reasonably believes to be necessary to defend the officer’s self or another from bodily harm while making the arrest. However, such officer is justified in using deadly force only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving death or great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.

            (b) A law enforcement officer making an arrest pursuant to an invalid warrant is justified in the use of any force which such officer would be justified in using if the warrant were valid, unless such officer knows that the warrant is invalid.

History: L. 1969, ch. 180, § 21-3215; L. 1990, ch. 98, § 1; L. 1993, ch. 69, § 1; L. 2010, ch. 124, § 8; L. 2010, ch. 136, § 25; L. 2011, ch. 30, § 11, July 1.

21-5228. Same; private person making arrest.

            (a) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which such person would be justified in using if such person were summoned or directed by a law enforcement officer to make such arrest, except that such person is justified in the use of deadly force only when such person reasonably believes that such force is necessary to prevent death or great bodily harm to such person or another.

            (b) A private person who is summoned or directed by a law enforcement officer to assist in making an arrest which is unlawful, is justified in the use of any force which such person would be justified in using if the arrest were lawful.

History: L. 1969, ch. 180, § 21-3216; L. 2010, ch. 124, § 9; L. 2010, ch. 136, § 26; L. 2011, ch. 30, § 12, July 1.

21-5229. Same; resisting arrest.

            A person is not authorized to use force to resist an arrest which such person knows is being made either by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person arrested believes that the arrest is unlawful.

History: L. 1969, ch. 180, § 21-3217; L. 2010, ch. 124, § 10; L. 2010, ch. 136, § 27; July 1, 2011.

21-5230. Same; no duty to retreat.

            A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand such person's ground and use any force which such person would be justified in using under article 32 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or K.S.A. 2015 Supp. 21-5202 through 21-5208, 21-5210 through 21-5212, and 21-5220 through 21-5231, and amendments thereto.

History: L. 2006, ch. 194, § 1; L. 2010, ch. 124, § 10; L. 2010, ch. 136, § 28; L. 2011, ch. 30, § 13, July 1.

21-5231. Same; immunity from prosecution or liability; investigation.

            (a) A person who uses force which, subject to the provisions of K.S.A. 2015 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2015 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant.

            (b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.

            (c) A prosecutor may commence a criminal prosecution upon a determination of probable cause.

History: L. 2006, ch. 194, § 2; L. 2007, ch. 169, § 1; L. 2010, ch. 136, § 29; July 1, 2011.