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State must prove adult's inability to consent [NOT FINAL]

Matthew J. Edge won in State v. Wylie, No. 99,580 (Kan. App. May 22, 2009)(unpublished), reversing a Lyon County rape conviction. The state charged Mr. Wylie with alternative counts of rape by force and rape of a woman unable to give consent due to a mental disability. The jury acquitted of rape by force and rape by inability to consent. The COA rejected the state's argument that the victim's failure to affirmatively state that she understood certain consequences of sexual intercourse was sufficient to show inability to consent:

The State argues that unlike the victim in [State v. Ice, 27 Kan. App. 2d 1, 997 P.2d 737 (2000)], C.F. never affirmatively stated that she understood certain consequences of sexual intercourse, such as AIDS or venereal disease. It contends C.F. merely agreed with the defense attorney that a woman can get pregnant if a man has sex with her. It also contends that C.F. never testified that she had the right to resist advances and say no. According to the State, this all establishes that the level of C.F.'s understanding of sexual activities was less than that of the victim in Ice.

The problem with the State's argument is that it suggests that the absence of testimony is sufficient to establish that C.F. was incapable of giving consent. The argument, in essence, transfers to Wylie the burden to prove C.F. was capable of giving consent, when legally it was the State's burden to prove C.F. was not capable of giving consent. The argument is contrary to the elementary principle that the State has the burden to prove each element of the crime charged.

The COA went on to review the record, especially's C.F.'s tesimony:

C.F.'s testimony was clear and lucid throughout her direct testimony and cross-examination. Her account was specific, and she answered the questions about the incident in completed thoughts. Her understanding of sex and its consequences is far from rudimentary.

As a result, the COA held that the state had failed to introduce sufficient evidence of inability to consent.

The COA rejected Mr. Wylie's claims that this problem infected an aggravated burglary conviction, which it affirmed.

Full post as published by Kansas Defenders on June 02, 2009 (boomark / email).