State v. Brooks

While I agree with the majority’s conclusion that the phrase “force or fear” in K.S.A. 2005 Supp. 21-3502(a)(1)(A) does not create alternative means of committing rape, I respectfully dissent from the majority’s holding that the State presented sufficient evidence to show that J.P. was overcome by fear. As explained below, the majority’s rationale is fundamentally flawed in that it conflates the element of lack of consent with the requirement that the victim be overcome by force or fear and essentially renders the latter requirement meaningless. In this case, while the State presented…