21-5502 Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice.
(2) a body cavity search conducted in accordance with K.S.A. 22-2520 through 22-2524, and amendments thereto.
(c) "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.
(d) "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; L. 2010, ch. 136, § 65; July 1, 2011; L. 2015, ch. 94, § 2 (SB 113), July 1.
21-5502. Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice.
(20) attempt, as defined in K.S.A. 2016 Supp. 21-5301, and amendments thereto, or conspiracy, as defined in K.S.A. 2016 Supp. 21-5302, 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; L. 2010, ch. 136, § 66; L.2013, ch. 120, § 15; L. 2017, ch. 78, § 11; July 1.
(2) Rape as defined in subsection (a)(3) or attempt, conspiracy or criminal solicitation to commit rape as defined in subsection (a)(3) is an off- grid person felony, when the offender is 18 years of age or older.
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; L. 2010, ch. 136, § 67; L. 2011, ch. 30, § 29, July 1.
21-5504. Criminal sodomy; aggravated criminal sodomy.
(B) subsection (b)(1) or (b)(2) is a severity level 1, person felony, except as provided in subsection (3).
History: L. 1969, ch. 180, § 21-3505; L. 1983, ch. 109, § 5; L. 1992, ch. 298, § 23; L. 1993, ch. 253, § 6; L. 2010, ch. 136, § 68; L. 2011, ch. 30, § 30, July 1.
21-5505. Sexual battery; aggravated sexual battery.
(a) Sexual battery is the touching of a victim who is not the spouse of the offender, 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.
(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.
(c) (1) Sexual battery is a class A person misdemeanor.
(2) Aggravated sexual battery is a severity level 5, person felony.
(d) Except as provided in subsection (b)(3), it shall not be a defense that the offender did not know or have reason to know that the victim did not consent to the battery, that the victim was overcome by force or fear, or that the victim was unconscious or physically powerless.
21-5506. Indecent liberties with a child; aggravated indecent liberties with a child.
(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) 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.
(c) (1) Indecent liberties with a child is a severity level 5, person felony.
(ii) off-grid person felony, when the offender is 18 years of age or older.
(d) It shall be a defense to a prosecution of indecent liberties with a child, as defined in subsection (a)(1), and aggravated indecent liberties with a child, as defined in subsections (b)(1), (b)(2)(A) and (b)(3)(A) that the child was married to the accused at the time of the offense.
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; L. 2010, ch. 136, § 70; July 1, 2011.
21-5507. Unlawful voluntary sexual relations.
(5) when the child and the offender are members of the opposite sex.
(3) subsection (a)(1)(C) is a severity level 10, person felony.
History: L. 1993, ch. 142, § 1; L. 1999, ch. 164, § 8; L. 1999, ch. 164, § 38; 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; L. 2010, ch. 136, § 71; July 1, 2011.
21-5508. Indecent solicitation of a child; aggravated indecent solicitation of a child.
(2) enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the child.
(2) enter any vehicle, building, room or secluded place with the intent to commit an unlawful sexual act upon or with the child.
(c) (1) Indecent solicitation of a child is a severity level 6, person felony.
(2) Aggravated indecent solicitation of a child is a severity level 5, person felony.
(d) It shall not be a defense that the offender did not know or have reason to know that the sexual act was unlawful.
History: L. 1969, ch. 180, § 21-3510; L. 1992, ch. 298, § 26; L. 1993, ch. 291, § 47; L. 2005, ch. 162, § 2; L. 2010, ch. 136, § 72; July 1, 2011.
(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.
History: L. 2006, ch. 212, § 7; L. 2009, ch. 70, § 1; L. 2010, ch. 136, § 73; July 1, 2011.
21-5510. Sexual exploitation of a child.
(4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age or a person whom the offender believes to be a child under 18 years of age, knowing the character and content of the performance.
(B) subsection (a)(1) or (a)(4) is a severity level 3, person felony, except as provided in subsection (b)(2).
(2) Sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) or attempt, conspiracy or criminal solicitation to commit sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) is an off-grid person felony, when the offender is 18 years of age or older and the child is under 14 years of age.
(3) K.S.A. 2015 Supp. K.S.A. 21-5303(d), 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)(1) or (a)(4).
(5) "visual depiction" means any photograph, film, video picture, digital or computer-generated image or picture, whether made or produced by electronic, mechanical or other means.
(e) The provisions of this section shall not apply to possession of a visual depiction of a child in a state of nudity if the person possessing such visual depiction is the child who is the subject of such visual depiction.
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; L. 2010, ch. 136, § 74; L. 2011, ch. 30, § 32, L. 2011, ch. 100, § 16, L. 2016, ch. 96, § 4; L. 2017, ch. 78, § 12; July 1.
(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; L. 2010, ch. 136, § 75; July 1, 2011.
(12) the offender is a surety or an employee of a surety 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 the subject of a surety or bail bond agreement with such surety 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 the subject of a surety or bail bond agreement with such surety.
(13) the offender is a law enforcement officer 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 interacting with such law enforcement officer during the course of a traffic stop, a custodial interrogation, an interview in connection with an investigation, or while the law enforcement officer has such person detained.
(2) subsection (a)(1), (a)(2), (a)(3), (a)(4), (a)(6), (a)(7), (a)(8), (a)(9), (a)(10), (a)(11), (a)(12) or (a)(13) is a severity level 5, person felony.
(c) (1) If an offender violates the provisions of this section by engaging in consensual sexual intercourse which would constitute a violation of K.S.A. 2017 Supp. 21-5503, and amendments thereto, the provisions of K.S.A. 2011 Supp. 21-5503, and amendments thereto, shall apply, not this section.
(2) If an offender violates the provisions of this section by engaging in consensual sexual intercourse which would constitute a violation of K.S.A. 2017 Supp. 21-5506(b)(1), and amendments thereto, the provisions of K.S.A. 2017 Supp. 21-5506(b)(1, and amendments thereto, shall apply, not this section.
(3) If an offender violates the provisions of this section by engaging in sodomy which would constitute a violation of K.S.A. 2017 Supp. 21-5504(a)(3), (a)(4) or (b), and amendments thereto, the provisions of K.S.A. 2017 Supp. 21-5504(a)(3), (a)(4) or (b), and amendments thereto, shall apply, not this section.
(4) If an offender violates the provisions of this section by engaging in lewd fondling or touching which would constitute a violation of K.S.A. 2017 Supp. 21-5506(b)(2), and amendments thereto, the provisions of K.S.A. 2017 Supp. 21- 5506(b)(2), and amendments thereto, shall apply, not this section.
(13) "surety" means the same as in K.S.A. 22-2809a, and amendments thereto.
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; L. 2010, ch. 136, § 76; L. 2011, ch, 30, § 33, L. 2012, ch. 138, § 1; L. 2014, ch. 90, § 2; L. 2018, ch. 92, § 2; July 1.
21-5513. Lewd and lascivious behavior.
(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; L. 2010, ch. 136, § 77; July 1, 2011.
21-5514. Internet trading in child pornography.
(a) Except as provided in K.S.A. 2016 Supp. 21-5610 and 21-5611, and amendments thereto, internet trading in child pornography is sexual exploitation of a child, as defined in K.S.A. 2016 Supp. 21- 5510(a)(2), and amendments thereto, when the offender is 18 years of age or older, and the offender knowingly causes or permits the visual depiction to be viewed, by use of any electronic device connected to the internet, by any person other than the offender or a person depicted in the visual depiction.
(b) Except as provided in K.S.A. 2016 Supp. 21-5610 and 21-5611, and amendments thereto, aggravated internet trading in child pornography is sexual exploitation of a child, as defined in K.S.A. 2016 Supp. 21-5510(a)(1) or (4), and amendments thereto, when the offender is 18 years of age or older and the offender knowingly causes or permits the performance to be viewed, by use of any electronic device connected to the internet, by any person other than the offender or a person depicted in the performance.
(c) (1) Internet trading in child pornography is a severity level 5, person felony.
(2) Aggravated internet trading in child pornography is a severity level 3, person felony, except as provided in subsection (c)(3).
(3) Aggravated internet trading in child pornography or attempt, conspiracy or criminal solicitation to commit aggravated internet trading in child pornography is an off-grid person felony when the child is under 14 years of age.
(3) K.S.A. 2016 Supp. 21-5303(d), and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of aggravated internet trading in child pornography pursuant to this section.
(e) In addition to the venue provided for under any other provision of law, a prosecution for internet trading in child pornography or aggravated internet trading in child pornography may be brought in the county where the visual depiction or performance may be viewed by any person other than the offender using any electronic device connected to the internet and is viewed by a law enforcement officer using an electronic device connected to the internet while engaged in such officer’s official duties.
(f) As used in this section, ‘‘the internet’’ has the meaning as provided in K.S.A. 66-2011, and amendments thereto.
History: L. 2017, ch. 78, § 3; July 1.