K.S.A. Chapter 21 Article 35

SEX OFFENSES

Current through End of 2010 Legislative Session

 

21-3501          Definitions.

21-3502          Rape.

21-3503          Indecent liberties with a child.

21-3504          Aggravated indecent liberties with a child.

21-3505          Criminal sodomy.

21-3506          Aggravated criminal sodomy.

21-3507          Adultery.

21-3508          Lewd and lascivious behavior.

21-3510          Indecent solicitation of a child.

21-3511          Aggravated indecent solicitation of a child.

21-3512          Prostitution.

21-3513          Promoting prostitution.

21-3515          Patronizing a prostitute.

21-3516          Sexual exploitation of a child.

21-3517          Sexual battery.

21-3518          Aggravated sexual battery.

21-3520          Unlawful sexual relations.

21-3521          Severability clause.

21-3522          Unlawful voluntary sexual relations.

21-3523          Electronic solication.

21-3525          Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice.


21-3501. Definitions.

            The following definitions apply in this article unless a different meaning is plainly required:

            (1) 'Sexual intercourse' means any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse. 'Sexual intercourse' does not include penetration of the female sex organ by a finger or object in the course of the performance of:

            (a) Generally recognized health care practices; or

            (b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.

            (2) 'Sodomy' means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal. 'Sodomy' does not include penetration of the anal opening by a finger or object in the course of the performance of:

            (a) Generally recognized health care practices; or

            (b) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.

            (3) 'Spouse' means a lawful husband or wife, unless the couple is living apart in separate

residences or either spouse has filed an action for annulment, separate maintenance or divorce or for relief under the protection from abuse act.

            (4) 'Unlawful sexual act' means any rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual battery, as defined in this code.

History: L. 1969, ch. 180, § 21-3501; L. 1983, ch. 109, § 1; L. 1990, ch. 149, § 14; L. 1991, ch. 86, § 1; July 1.

21-3502. Rape.

            (a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:

            (A) When the victim is overcome by force or fear;

            (B) when the victim is unconscious or physically powerless; or

            (C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender;

            (2) sexual intercourse with a child who is under 14 years of age;

            (3) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure; or

            (4) sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a legally required procedure within the scope of the offender's authority.

            (b) It shall be a defense to a prosecution of rape under subsection (a)(2) that the child was married to the accused at the time of the offense.

            (c) Except as provided further, rape as described in subsection (a)(1) or (2) is a severity level 1, person felony. Rape as described in subsection (a)(2), or attempt, conspiracy or criminal solicitation to commit rape as described in subsection (a)(2), when the offender is 18 years of age or older, is an off-grid person felony. Rape as described in subsection (a)(3) or (4) is a severity level 2, person felony.

            (d) If the offender is 18 years of age or older, the provisions of:

            (1) Subsection (c) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of rape as described in subsection (a)(2);

            (2) subsection (c) of K.S.A. 21-3302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of rape as described in subsection (a)(2); and

            (3) subsection (d) of K.S.A. 21-3303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of rape as described in subsection (a)(2).

History: L. 1969, ch. 180, § 21-3502; L. 1978, ch. 120, § 1; L. 1983, ch. 109, § 2; L. 1993, ch. 253, § 1; L. 1993, ch. 253, § 2; L. 1996, ch. 258, § 3; L. 2006, ch. 212, § 8; L. 2010, ch. 109, § 7; April 29.

21-3503. Indecent liberties with a child.

            (a) Indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:

            (1) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or

            (2) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.

            (b) It shall be a defense to a prosecution of indecent liberties with a child as described in subsection (a)(1) that the child was married to the accused at the time of the offense.

            (c) Indecent liberties with a child is a severity level 5, person felony.

History: L. 1969, ch. 180, § 21-3503; L. 1975, ch. 193, § 1; L. 1983, ch. 109, § 3; L. 1984, ch. 118, § 1; L. 1985, ch. 109, § 2; L. 1987, ch. 108, § 1; L. 1989, ch. 89, § 1; L. 1993, ch. 253, § 3; L. 1993, ch. 253, § 4; July 1.

21-3504. Aggravated indecent liberties with a child.

            (a) Aggravated indecent liberties with a child is:

            (1) Sexual intercourse with a child who is 14 or more years of age but less than 16 years of age;

            (2) engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age and who does not consent thereto:

            (A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; or

            (B) causing the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another; or

            (3) engaging in any of the following acts with a child who is under 14 years of age:

            (A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or

            (B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.

            (b) It shall be a defense to a prosecution of aggravated indecent liberties with a child as provided in subsection (a)(1), (a)(2)(A) and (a)(3)(A) that the child was married to the accused at the time of the offense.

            (c) Except as provided further, aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. Aggravated indecent liberties with a child as described in subsection (a)(2) is a severity level 4, person felony. When the offender is 18 years of age or older, aggravated indecent liberties with a child as described in subsection (a)(3), or attempt, conspiracy or criminal solicitation to commit aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.

            (d) If the offender is 18 years of age or older, the provisions of:

            (1) Subsection (c) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of aggravated indecent liberties with a child as described in subsection (a)(3);

            (2) subsection (c) of K.S.A. 21-3302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of aggravated indecent liberties with a child as described in subsection (a)(3); and

            (3) subsection (d) of K.S.A. 21-3303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of aggravated indecent liberties with a child as described in subsection (a)(3).

History: L. 1969, ch. 180, § 21-3504; L. 1975, ch. 193, § 2; L. 1983, ch. 109, § 4; L. 1984, ch. 112, § 3; L. 1984, ch. 118, §2; L. 1992, ch. 298, § 22; L. 1993, ch. 253, § 5; L. 1993, ch. 291, § 271; L. 2006, ch. 212, § 11; L. 2010, ch. 109, § 8; April 29.

21-3505. Criminal sodomy.

            (a) Criminal sodomy is:

            (1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;

            (2) sodomy with a child who is 14 or more years of age but less than 16 years of age; or

            (3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.

            (b) It shall be a defense to a prosecution of criminal sodomy as provided in subsection (a)(2) that the child was married to the accused at the time of the offense.

            (c) Criminal sodomy as provided in subsection (a)(1) is a class B nonperson misdemeanor. Criminal sodomy as provided in subsections (a)(2) and (a)(3) is a severity level 3, person felony.

History: L. 1969, ch. 180, § 21-3505; L. 1983, ch. 109, § 5; L. 1992, ch. 298, § 23; L. 1993, ch. 253, § 6; July 1.

21-3506. Aggravated criminal sodomy.

            (a) Aggravated criminal sodomy is:

            (1) Sodomy with a child who is under 14 years of age;

            (2) causing a child under 14 years of age to engage in sodomy with any person or an animal; or

            (3) sodomy with a person who does not consent to the sodomy or causing a person, without the person's consent, to engage in sodomy with any person or an animal, under any of the following circumstances:

            (A) When the victim is overcome by force or fear;

            (B) when the victim is unconscious or physically powerless; or

            (C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.

            (b) It shall be a defense to a prosecution of aggravated criminal sodomy under subsection (a)(1) that the child was married to the accused at the time of the offense.

            (c) Except as provided further, aggravated criminal sodomy is a severity level 1, person felony. Aggravated criminal sodomy as described in subsection (a)(1) or (a)(2), or attempt, conspiracy or criminal solicitation to commit aggravated criminal sodomy as described in subsection (a)(1) or (a)(2), when the offender is 18 years of age or older, is an off-grid person felony.

            (d) If the offender is 18 years of age or older, the provisions of:

            (1) Subsection (c) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of aggravated criminal sodomy as described in subsection (a)(1) or (a)(2);

            (2) subsection (c) of K.S.A. 21-3302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of aggravated criminal sodomy as described in subsection (a)(1) or (a)(2); and

            (3) subsection (d) of K.S.A. 21-3303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of aggravated criminal sodomy as described in subsection (a)(1) or (a)(2).

History: L. 1969, ch. 180, § 21-3506; L. 1983, ch. 109, § 6; L. 1993, ch. 253, § 7; L. 1993, ch. 253, § 8; L. 2006, ch. 212, § 9; L. 2010, ch. 109, § 9; April 29.

21-3507. Adultery.

            (1) Adultery is engaging in sexual intercourse or sodomy with a person who is not married to the offender if:

            (a) The offender is married; or

            (b) The offender is not married and knows that the other person involved in the act is married.

            (2) Adultery is a class C misdemeanor.

History: L. 1969, ch. 180, § 21-3507; L. 1983, ch. 109, § 7; July 1.

21-3508. Lewd and lascivious behavior.

            (a) Lewd and lascivious behavior is:

            (1) Publicly engaging in otherwise lawful sexual intercourse or sodomy with knowledge or reasonable anticipation that the participants are being viewed by others; or

            (2) publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.

            (b) (1) Lewd and lascivious behavior if committed in the presence of a person 16 or more years of age is a class B nonperson misdemeanor.

            (2) Lewd and lascivious behavior if committed in the presence of a person under 16 years of age is a severity level 9, person felony.

History: L. 1969, ch. 180, § 21-3508; L. 1983, ch. 109, § 8; L. 1992, ch. 298, § 25; L. 1993, ch. 291, § 46; L. 1998, ch. 104, § 1; July 1.

21-3510. Indecent solicitation of a child.

            (a) Indecent solicitation of a child is:

            (1) Enticing or soliciting a child 14 or more years of age but less than 16 years of age to commit or to submit to an unlawful sexual act; or

            (2) inviting, persuading or attempting to persuade a child 14 or more years of age but less than 16 years of age to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.

            (b) Indecent solicitation of a child is a severity level 6, person felony.

History: L. 1969, ch. 180, § 21-3510; L. 1992, ch. 298, § 26; L. 1993, ch. 291, § 47; L. 2005, ch. 162, § 2 (SB 147); July 1.

21-3511. Aggravated indecent solicitation of a child.

            Aggravated indecent solicitation of a child is:

            (a) Enticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act; or

            (b) inviting, persuading or attempting to persuade a child under the age of 14 years to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.

            Aggravated indecent solicitation of a child is a severity level 5, person felony.

History: L. 1969, ch. 180, § 21-3511; L. 1992, ch. 298, § 27; L. 1993, ch. 291, § 48; L. 2005, ch. 162, § 3 (SB 147); July 1.

21-3512. Prostitution.

            (a) Prostitution is performing for hire, or offering or agreeing to perform for hire where there is an exchange of value, any of the following acts:

            (1) Sexual intercourse;

            (2) sodomy; or

            (3) manual or other bodily contact stimulation of the genitals of any person with the intent to arouse or gratify the sexual desires of the offender or another.

            (b) Prostitution is a class B nonperson misdemeanor.

History: L. 1969, ch. 180, § 21-3512; L. 1980, ch. 98, § 1; L. 1983, ch. 109, § 9; L. 1992, ch. 239, § 80; L. 1993, ch. 291, § 49; July 1.

21-3513. Promoting prostitution.

            (a) Promoting prostitution is:

            (1) Establishing, owning, maintaining or managing a house of prostitution, or participating in the establishment, ownership, maintenance, or management thereof;

            (2) permitting any place partially or wholly owned or controlled by the defendant to be used as a house of prostitution;

            (3) procuring a prostitute for a house of prostitution;

            (4) inducing another to become a prostitute;

            (5) soliciting a patron for a prostitute or for a house of prostitution;

            (6) procuring a prostitute for a patron;

            (7) procuring transportation for, paying for the transportation of, or transporting a person within this state with the intention of assisting or promoting that person's engaging in prostitution; or

            (8) being employed to perform any act which is prohibited by this section.

            (b) (1) Promoting prostitution is a class A person misdemeanor when the prostitute is 16 or more years of age.

            (2) Promoting prostitution when the prostitute is 16 or more years of age is a severity level 7, person felony if committed by a person who has, prior to the commission of the crime, been convicted of promoting prostitution.

            (3) Except as provided in paragraph (4), promoting prostitution is a severity level 6, person felony when the prostitute is under 16 years of age.

            (4) Promoting prostitution, or attempt, conspiracy or criminal solicitation to commit promoting prostitution is an off-grid person felony when the offender is 18 years of age or older and the prostitute is less than 14 years of age.

            (d) If the offender is 18 years of age or older and the victim is less than 14 years of age, the provisions of:

            (1) Subsection (c) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of promoting prostitution as described in subsection (b)(4);

            (2) subsection (c) of K.S.A. 21-3302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of promoting prostitution as described in subsection (b)(4); and

            (3) subsection (d) of K.S.A. 21-3303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of promoting prostitution as described in subsection (b)(4).

History: L. 1969, ch. 180, § 21-3513; L. 1986, ch. 120, § 1; L. 1992, ch. 298, § 28; L. 1993, ch. 291, § 50; L. 1994, ch. 291, § 25; L. 2006, ch. 212, § 12; L. 2010. ch. 109, § 10, April 29.

21-3515. Patronizing a prostitute.

            (1) Patronizing a prostitute is either:

            (a) Knowingly entering or remaining in a house of prostitution with intent to engage in sexual intercourse, sodomy or any unlawful sexual act with a prostitute; or

            (b) knowingly hiring a prostitute to engage in sexual intercourse, sodomy or any unlawful sexual act.

            (2) Patronizing a prostitute is a class C misdemeanor.

History: L. 1969, ch. 180, § 21-3515; L. 1983, ch. 109, § 10; July 1.

21-3516. Sexual exploitation of a child.

            (a) Sexual exploitation of a child is:

            (1) Except as provided in subsection (a)(5), Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age to engage in sexually explicit conduct for the purpose of promoting any performance;

            (2) possessing any visual depiction, including any photograph, film, video picture, digital or computer generated image or picture, whether made or produced by electronic, mechanical or other means, where such visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another;

            (3) being a parent, guardian or other person having custody or control of a child under 18 years of age and knowingly permitting such child to engage in, or assist another to engage in, sexually explicit conduct for any purpose described in subsection (a)(1) or (2);

            (4) except as provided in subsection (a)(6), promoting any performance that includes sexually explicit conduct by a child under 18 years of age, knowing the character and content of the performance;

            (5) employing, using, persuading, inducing, enticing or coercing a child under 14 years of age to engage in sexually explicit conduct for the purpose of promoting any performance; or

            (6) promoting any performance that includes sexually explicit conduct by a child under 14 years of age, knowing the character and content of the performance.

            (b) As used in this section:

            (1) 'Sexually explicit conduct' means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sado-masochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person.

            (2) 'Promoting' means procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

            (A) For pecuniary profit; or

            (B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child or another.

            (3) 'Performance' means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk or any play or other live presentation.

            (4) 'Nude' means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered.

            (c) Except as provided further, sexual exploitation of a child is a severity level 5, person felony. Sexual exploitation of a child as described in subsection (a)(5) or (a)(6) or attempt,conspiracy or criminal solicitation to commit sexual exploitation of a child as described in subsection (a)(5) or (a)(6) when the offender is 18 years of age or older is an off-grid person

felony.

            (d) If the offender is 18 years of age or older, the provisions of:

            (1) Subsection (c) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of sexual exploitation of a child as defined in subsection (a)(5) or (a)(6);

            (2) subsection (c) of K.S.A. 21-3302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of sexual exploitation of a child as defined in subsection (a)(5) or (a)(6); and

            (3) subsection (d) of K.S.A. 21-3303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of sexual exploitation of a child as defined in subsection (a)(5) or (a)(6).

            (e) This section shall be part of and supplemental to the Kansas criminal code.

History: L. 1978, ch. 122, § 1; L. 1985, ch. 109, § 1; L. 1986, ch. 121, § 1; L. 1989, ch. 90, § 1; L. 1992, ch. 298, § 29; L. 1993, ch. 291, § 51; L. 1995, ch. 251, § 11; L. 1998, ch. 104, § 2; L. 2005, ch. 162, § 4; L. 2006, ch. 212, § 13; L. 2007, ch. 198, § 2; L. 2010, ch. 109, § 11; April 29.

21-3517. Sexual battery.

            (a) Sexual battery is the intentional touching of the person of another who is 16 or more years of age, who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.

            (b) Sexual battery is a class A person misdemeanor.

            (c) This section shall be part of and supplemental to the Kansas criminal code.

History: L. 1983, ch. 109, § 13; L. 1992, ch. 298, § 30; L. 1993, ch. 291, § 52; July 1.

21-3518. Aggravated sexual battery.

            (a) Aggravated sexual battery is the intentional touching of the person of another who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another under any of the following circumstances:

            (1) When the victim is overcome by force or fear;

            (2) when the victim is unconscious or physically powerless;

            (3) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by, or was reasonably apparent to, the offender.

            (b) Aggravated sexual battery is a severity level 5, person felony.

            (c) This section shall be part of and supplemental to the Kansas criminal code.

History: L. 1983, ch. 109, § 14; L. 1993, ch. 253, § 9; L. 1993, ch. 253, § 10; July 1.

21-3520. Unlawful sexual relations.

            (a) Unlawful sexual relations is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if:

            (1) The offender is an employee or volunteer of the department of corrections or the employee or volunteer of a contractor who is under contract to provide services for a correctional institution and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate; or

            (2) the offender is a parole officer or volunteer for the department of corrections or the employee or volunteer of a contractor who is under contract to provide supervision services for persons on parole, conditional release or postrelease supervision and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is an inmate who has been released on parole conditional release or postrelease supervision and the offender has knowledge that the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is an inmate who has been released and is currently on parole, conditional release or postrelease supervision; of the offender; or

            (3) the offender is a law enforcement officer, an employee of a jail, or the employee of a contractor who is under contract to provide services in a jail and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined by lawful custody to such jail; or

            (4) the offender is a law enforcement officer, an employee of a juvenile detention facility or sanctions house, or the employee of a contractor who is under contract to provide services in such facility or sanctions house and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined by lawful custody to such facility or sanctions house; or

            (5) the offender is an employee of the juvenile justice authority or the employee of a contractor who is under contract to provide services in a juvenile correctional facility and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is a person 16 years of age or older who is confined by lawful custody to such facility; or

            (6) the offender is an employee of the juvenile justice authority or the employee of a contractor who is under contract to provide direct supervision and offender control services to the juvenile justice authority and the person with whom the offender is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy is 16 years of age or older and (A) released on conditional release from a juvenile correctional facility under the direct supervision and control of the offender or (B) placed in the custody of the juvenile justice authority under the direct supervision and control of the offender.

            (7) the offender is an employee of the department of social and rehabilitation services or the employee of a contractor who is under contract to provide services in a social and rehabilitation services institution and the person with whom the offender is engaging in consensual sexual intercourse, not otherwise subject to subsection (a)(1)(C) of K.S.A. 21-3502, and amendments thereto, lewd fondling or touching, or sodomy, not otherwise subject to subsection (a)(3)(C) of K.S.A. 21-3506, and amendments thereto, is a person 16 years of age or older who is a patient in such institution.; or

            (8) the offender is a teacher or a person in a position of authority and the person with whom the offender is engaging in consensual sexual intercourse, not otherwise subject to subsection (a)(2) of K.S.A. 21-3502 or subsection (a)(1) of K.S.A. 21-3504, and amendments thereto, lewd fondling or touching, not otherwise subject to K.S.A. 21-3503 or subsection

(a)(2) or (a)(3) of K.S.A. 21-3504, and amendments thereto, or sodomy, not otherwise subject to K.S.A. 21-3505 or subsection (a)(1) or (a)(2) of K.S.A. 21-3506, and amendments thereto, is a student enrolled at the school where the offender is employed. If the offender is the parent of the student, the provisions of K.S.A. 21-3603, and amendments thereto, shall apply, not this subsection.

            (b) Unlawful sexual relations as provided in:

            (1) Subsection (a)(5) is a severity level 4, person felony; and

            (2) subsections (a)(1), (2), (3), (4), (6), (7), (8), (9) or (10) is a severity level 5, person felony.

            (c) For purposes of this act:

            (1) 'Correctional institution' means the same as prescribed by K.S.A. 75-5202, and amendments thereto;

            (2) 'inmate' means the same as prescribed by K.S.A. 75-5202, and amendments thereto;

            (3) 'parole officer' means the same as prescribed by K.S.A. 75-5202, and amendments thereto;

            (4) 'postrelease supervision' means the same as prescribed in the Kansas sentencing guidelines act in K.S.A. 21-4703;

            (5) 'juvenile detention facility' means the same as prescribed by K.S.A. 2009 Supp. 38-2302, and amendments thereto;

            (6) 'juvenile correctional facility' means the same as prescribed by K.S.A. 2009 Supp. 38-2302,, and amendments thereto;

            (7) 'sanctions house' means the same as prescribed by section 2 [of 2006 SB 261], and amendments thereto.

            (8) ‘‘institution’’ means the same as prescribed by K.S.A. 76-12a01, and amendments thereto.; and

            (9) ‘‘teacher’’ means and includes teachers, supervisors, principals, superintendents and any other professional employee in any public or private school offering any of grades kindergarten through 12;

            (10) ‘‘community corrections’’ means the entity responsible for supervising adults and juvenile offenders for confinement, detention, care or treatment, subject to conditions imposed by the court pursuant to the community corrections act, K.S.A. 75-5290, and amendments thereto, and the Kansas juvenile justice code, K.S.A. 2009 Supp. 38-2301 et seq., and amendments thereto;

            (11) ‘‘court services’’ means the entity appointed by the district court that is responsible for supervising adults and juveniles placed on probation and misdemeanants placed on parole by district courts of this state;

            (12) ‘‘law enforcement officer’’ means the same as prescribed by K.S.A. 21-3110, and amendments thereto; and

            (13) ‘‘juvenile community supervision agency’’ means an entity that receives grants for the purpose of providing direct supervision to juveniles in the custody of the juvenile justice authority.

History: L. 1993, ch. 142, § 1; L. 1999, ch. 164, § 8; L. 2001, ch. 208, § 1; L. 2002, ch. 163, § 1; L. 2006, ch. 169, § 95; L. 2007, ch. 172, § 2; L. 2010, ch. 147, § 3; July 1.

21-3521. Severability clause.

            If any provision of this act is held to be invalid or unconstitutional, it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional provision.

History: L. 1998, ch. 104, § 3; July 1.

21-3522. Unlawful voluntary sexual relations.

            (a) Unlawful voluntary sexual relations is engaging in voluntary: (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and the child and the offender are the only parties involved and are members of the opposite sex.

            (b) (1) Unlawful voluntary sexual relations as provided in subsection (a)(1) is a severity level 8, person felony.

            (2) Unlawful voluntary sexual relations as provided in subsection (a)(2) is a severity level 9, person felony.

            (3) Unlawful voluntary sexual relations as provided in subsection (a)(3) is a severity level 10, person felony.

History: L. 1999, ch. 164, § 38; July 1.

21-3523. Electronic solication.

            (a) Electronic solicitation is, by means of communication conducted through the telephone, internet, or by other electronic means:

            (1) Enticing or soliciting a person whom the offender believes to be a child 14 or more years of age but less than 16 years of age to commit or submit to an unlawful sexual act; or

            (2) enticing or soliciting a person whom the offender believes to be a child under the age of 14 to commit or submit to an unlawful sexual act.

            (b) Electronic solicitation as described in subsection (a)(1) is a severity level 3 person felony. Electronic solicitation as described in subsection (a)(2) is a severity level 1 person felony.

            (c) For the purposes of this section, "communication conducted through the internet or by other electronic means" includes but is not limited to e-mail, chatroom chats and text messaging.

            (d) This section shall be part of and supplemental to the Kansas criminal code.

History: L. 2006, ch. 212, § 7; L. 2009, ch. 70, § 1; April 16.

21-3525. Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice.

            (a) The provisions of this section shall apply only in a prosecution for: (1) Rape, as defined by K.S.A. 21-3502, and amendments thereto; (2) indecent liberties with a child, as defined in K.S.A. 21-3503, and amendments thereto; (3) aggravated indecent liberties with a child, as defined in K.S.A. 21-3504, and amendments thereto; (4) criminal sodomy, as defined in subsections (a)(2)and (a)(3) of K.S.A. 21-3505 and amendments thereto; (5) aggravated criminal sodomy as defined by K.S.A. 21-3506, and amendments thereto; (6) aggravated indecent solicitation of a child, as defined in K.S.A. 21-3511, and amendments thereto; (7) sexual exploitation of a child as defined in K.S.A. 21-3516, and amendments thereto; (8) aggravated sexual battery, as defined in K.S.A. 21-3518, and amendments thereto; (9) incest, as defined in K.S.A. 21-3602, and amendments thereto; (10) aggravated incest, as defined in K.S.A. 21-3603, and amendments thereto; (11) indecent solicitation of a child, as defined in K.S.A. 21-3510 and amendments thereto; (12) aggravated assault, as defined in K.S.A. 21-3410, and amendments thereto, with intent to commit any crime specified above; (13) sexual battery, as defined in K.S.A. 21-3517, and amendments thereto; (15) aggravated trafficking, as defined in subsections (a)(1)(B) and (a)(2) of K.S.A. 21-3447, and amendments thereto; (16) electronic solicitation, as defined in K.S.A. 21-3523, and amendments thereto; or (17) attempt, as defined in K.S.A. 21-3301, and amendments thereto, or conspiracy, as defined in K.S.A. 21-3302, and amendments thereto, to commit any crime specified above.

            (b) Except as provided in subsection (c), in any prosecution to which this section applies, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in any proceeding before the court, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the proceeding that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The motion, affidavits and any supporting or responding documents of the motion shall not be made available for examination without a written order of the court except that such motion, affidavits and supporting and responding documents or testimony when requested shall be made available to the defendant or the defendant's counsel and to the prosecutor. The defendant, defendant's counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion, affidavits and any supporting or responding documents of the motion. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.

            (c) In any prosecution for a crime designated in subsection (a), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.

            (d) As used in this section, "complaining witness" means the alleged victim of any crime designated in subsection (a), the prosecution of which is subject to this section.

History: L. 1976, ch. 162, § 1; L. 1983, ch. 109, § 15; L. 1991, ch. 87, § 1; L. 1992, ch. 298, § 32; L. 1993, ch. 291, § 53; L. 2005, ch. 114, § 1; L. 2009, ch. 70, § 2; April 16.