Sex crime allegations are very serious. At The Travis Law Firm, LLC we understand that these allegations may be motivated by other aspects and also the techinical aspects of the law - including Kansas' Jessica's Law. Jessica Travis has defendant those charged with Rape, Aggravated Indecent Liberties, Child Abuse, etc. She has postive results in cases of child-adult accusations and adult-adult accusations. Jessica uses a top-notch investigation team to uncover any motives that might be behind the allegations.
Additionally, Jessica Travis is constantly challenging the law. One of her recent appeals, State v. Smith, No. 96,120 (March 14, 2008), made new Kansas law. Jessica convinced the appellate court that when a defendant is charged with rape by intoxication, that the jury should be allowed to consider whether the defendant himself was intoxicated.
Jessica is presently challenging the laws that require a defendant to be found guilty and incarcerated for Aggravated Indecent Liberties with a minor even when the female victim lied to him about her age! Below is her recent motion:
IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSAS
STATE OF KANSAS, Plaintiff,
vs. Case No. ** Court No. * JOHN L. DOE, Defendant.
MOTION TO DECLARE STATUTE UNCONSTITUTIONAL OR, IN THE ALTERNATIVE, REQUIRE THE STATE TO ESTABLISH KNOWLEDGE
COMES NOW the defendant, John L. Doe, by and through counsel, Jessica J. Travis of The Travis Law Firm, LLC, and hereby moves this Court to dismiss the case against him because the charges violate his Due Process rights. In support thereof, the defendant would state and assert the following: FACTS
1. On July 22, 2008, Lawrence officers located A.B., a 15 year old runaway. 2. During the course of their investigation, officers interviewed A.B.’s boyfriend, John Doe. Mr. Doe told officers that he had met A.B. when he had been living in Texas. A.B. had said her name was different and that she was 18 years old. Mr. Doe and A.B. were in love and had plans to marry. He bought A.B. an engagement ring. Mr. Doe admitted they had sex during their relationship. The two had recently moved to Lawrence where he had previously lived to find work. Mr. Doe admitted that he had been told a few days prior that A.B. might be a 15 year-old run-away but he didn’t know if it was true. 3. A.B. was also interviewed and admitted that Mr. Doe did not know about her age until shortly before police arrived. 4. Officers arrested Mr. Doe and charged him with Aggravated Indecent Liberties, a level 3 person felony, and Sheltering a Runaway, a level 8 person felony. Mr. Doe is facing up to 70 months in prison. ARGUMENTS & AUTHORITIES
I. A Strict Liability Interpretation of 21-3504 Violates Constitutional Rights
A. History & Acknowledgment
The Kansas Aggravated Indecent Liberties statute is unconstitutional because it does not require the defendant to be aware of the girl’s age. The previous Kansas appellate rulings which upheld the strict liability of K.S.A. 21-3504 have not appropriately addressed the issue or have otherwise ruled in error. As applied to this case, K.S.A. 21-3504 states: 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 . . . The Kansas courts have rejected a Constitutional attacks on K.S.A. 21-3504 by merely stating that the State has a legitimate government interest in protecting children from “adult sexual predators.” State v. Taylor, 33 Kan. App.2d 284, 286-87, 101 P.3d 1283 (2004); State v. Voyles, 116 P.3d 720 (2005), cert granted State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007) (Taylor and Voyles 2005 upheld); State v. Reed, No 97,507 (Aug 29, 2008) (extending analysis to child rape.) However, these opinions are not dispositive for three reasons: 1) Rather than addressing defendant’s knowledge or intent, these cases address whether failure to consider the maturity of the child renders K.S.A. 21-3504 unconsitutional; 2) These cases apply a ‘rational basis’ test, but Mr. Doe situation invokes a higher standard because he has the right to defend himself and to engage in sex with someone that he believes to be adult; and 3) Even if the rational basis test is appropriate, the law must still be reasonable and non-arbitrary. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (finding under rational basis test, a city ordinance was based on irrational prejudice). B. Taylor & Voyles Distinguished Taylor and Voyles rejected constitutional attacks on K.S.A. 21-3504 for reasons different than asserted herein. The Taylor defendant alleged that the Aggravated Indecent Liberties statute was unconstitutional because it did not allow the maturity of the victim to be taken into account. The Taylor court rejected the argument in a very brief opinion with little case law. It finds that the State has a legitimate interest in protecting children from “sexual predators” but it does not address the facts at hand. State v. Taylor, 33 Kan. App.2d at 286-87. There is no discussion regarding whether the law is reasonable or arbitrary in attempting to further the legitimate state interest of protecting children. Taylor does not explain why a strict liability statute protects children better than one that requires intent or knowledge. It is completely devoid of data indicating that mistaken defendants are sexual predators. Taylor does not take into account that defendants have a Constitutional Due Process right to defend themselves against charges. The Taylor opinion does not address whether it is Constitutional to ignore a defendant’s intent or knowledge. It merely acknowledges that the statutes state that knowledge of age is irrelevant but provides no reasoning as to why they are Constitutionally sound - why a defendant must be stripped of his ability to defend himself in order to protect children. Taylor is woefully lacking. Voyles and Reed merely followed suit. C. Mr. Doe has a Due Process Right to Defend Himself Against the Allegations A strict liability interpretation of K.S.A. 21-3504 robs Mr. Doe of his right to defend himself against the allegations. When a defendant is deprived of his ability to defend himself against the charge, it is denial of his Due Process rights under the Fourteenth Amendment of the Constitution of the United States. See State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983); U.S. Const., 6th Amend.; Kan. Const. Bill of Rights § 10. “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Depetris v. Kuykendall, 239 F.3d 1057 (9th Cir., 2001), quoting Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Davis v. Alaska, 415 U.S. 308, 317 (1974), Washington v. Texas, 388 U.S. 14, 19 (1967). For example, the Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense. Chambers , 410 U.S. at 294; Washington, 388 U.S. at 18-19. Even in child sex cases, the accused’s right to defend himself must be weighed against the State’s interest of protecting children. Regarding confrontation in child sex cases, a defendant's right to present evidence may be subject to restrictions, provided that the restrictions are not "arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). The exclusion of evidence is unconstitutionally arbitrary or disproportionate where it has infringed upon a weighty interest of the accused. Scheffer, 523 U.S. at 308. In this case, both the State’s interest in protecting children and Mr. Doe’s right to defend himself could be enforced if the State was required to show intent - either actual knowledge or reckless disregard. Otherwise, a strict liability interpretation of the statute leaves Mr. Doe with his hands tied and unable to defend himself because he is automatically deemed to have criminal intent when, in fact, he did not. D. Mr. Doe Has the Right to Engage in Adult, Consensual Sex True, there is no right to engage with minors, but adults do have a fundamental right to engage in consensual adult sex. The 14th Amendment’s Due Process Clause states: “No state shall . . . deprive any person of life, liberty or property without due process of law.” Due Process violations are analyzed either under the strict scrutiny, intermediate scrutiny or rational basis tests. Mr. Doe argues herein that his right to Due Process requires an analysis higher than mere rational basis. In Lawrence v. Texas, 123 S.Ct. 2472 (2003), the United States Supreme Court held that a Texas law prohibiting homosexual sex violated the Fourteenth Amendment. In doing so, the Court ruled that adults have a fundamental right to engage in private, intimate conduct as an exercise of their liberty rights. The Texas law was struck because it was not narrowly drawn to justify a compelling interest. Here, Mr. Doe believed he was exercising his fundamental rights and a higher level of analysis - higher that rational basis - should be required. Unlike Taylor, the Voyles Court did engage in some Due Process analysis. Voyles recognized the three levels of scrutiny employed depending on the type of right or class involved - strict scrutiny, intermediate scrutiny and rational basis. Voyles, 160 P.2d at 807. However, the Court employed the lowest level of judicial review - rational basis - because it found that Voyles did not allege a violation based on fundamental rights, suspect classification, or gender. Id. The Court noted that under this rational basis, in order for K.S.A. 21-3506(a)(1) to pass constitutional muster, a law must meet the following criteria: "(1) it must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals. [Citations omitted.]" Voyles, 160 P.2d at 807; citing Mudd, 275 Kan. at 198, 62 P.3d 236. In holding the statute to be Constitutional, the Voyles Court merely cited Taylor’s finding that the State has a legitimate interest in protecting children from “adult sexual predators.” Id. However, the Voyles’ decision falls short and is inapplicable to the case at hand. Voyles did not extend its analysis to explain why the law presented a rational relationship or was reasonable and non-arbitrary. Voyles, 160 P.2d at 807. Also, in Voyles and Taylor, the defendant was arguing that failure to consider maturity level - not intent or knowledge - rendered the statute unconstitutional. Mr. Doe asserts herein that failure to consider actual knowledge violates his fundamental rights to present a defense and/or engage in private, intimate conduct. Because fundamental rights are at stake, a higher-level of scrutiny must be employed. Due Process requires something more than the Taylor and Voyles analysis before citizens in Mr. Doe’s position are deemed felons, imprisoned and forced to register as “sexual predators.” E. A Strict Liability Interpretation Is Not Necessary to Protect Children
Even if the appropriate test is only ‘rational basis,’ the analysis does not stop with a mere assertion of protecting children. The Government must still establish that the law is reasonable and not arbitrary. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). The strict liability construction of K.S.A. 21-3504 is unreasonable and arbitrary for two reasons: 1) Children remain protected when it is required to demonstrate that a defendant knew the girl was under-age, and 2) Other laws that seek to protect children require the government to establish knowledge. 1) Crimes Against Children Are Not Deterred by Punishing Those Who Believe They Are Having Sex With An Adult
“Sexual predators” will not be deterred if unsuspecting, unknowing men (usually) are punished for having sex with a girl who looks and says she is over 16. A person has to know they could potentially engage in an illegal act before there is any deterrence. There is no data to suggest that true sexual predators are deterred by the knowledge that others are caught up in the web of strict liability. A requirement that the State demonstrate that a defendant knew - or at least, should have know - a girl was under-age, would adequately ferret out the sexual predators yet prevent otherwise innocent men from going to prison. 2) Child Pornography Laws Are Meant to Protect Children But A Defendant Must Know The Child Is Underage
The Kansas Aggravated Indecent Liberties statute and case law are inconsistent with rulings regarding possession child pornography. These rulings acknowledge that the purpose of child pornography laws are to protect children but they also hold that a defendant cannot be found guilty of possessing child pornography unless it is shown he knew the person in the images was underage. There is no knowledge or intent requirement in the Kansas child pornography statute, K.S.A. 21-3516: 21-3516. Sexual exploitation of a child. (a) Sexual exploitation of a child is: . . . (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 . . . Facially, this statute is similar to the Kansas Aggravated Indecent Liberties statute because neither specifically state intent is required. However, possession of child pornography requires knowledge that the subject is underage. Though no Kansas courts appear to have addressed the issue, the United States Supreme Court addressed knowledge and child pornography in United States v. X-Citement Video, 513 U.S. 64, 130 L. Ed. 2d 372, 115 S. Ct. 464 (1994). The X-Citement Video Court found that the broader reading of the statute would sweep within the statute's ambit defendants who had no idea that they were even dealing with sexually explicit material. 513 U.S. at 69. The Court concluded that to prove the crime, the government must show intent as to each element of the crime, i.e., that the defendants knowingly transported the material of a sexually explicit nature depicting minors. Id. Why should one law require knowledge when the other does not? Both laws are meant to protect children. Both laws involve and potentially hamper otherwise protected Constitutional rights - liberty and speech. In this day and age, it is increasingly difficult to determine age. Conversely, the sexual offense laws are become increasingly more strict. Intent and knowledge ever important in determining who is and who isn’t a ‘sexual predator.’ “As noted by one commentator, the knowledge element is critical because in its absence–or, at least, without a reckless element in its place–strict liability is being imposed as to the fact of defendant's knowledge. ‘The latter position is a troubling one, given the seriousness of the offense.’" State v. Smith, No. 96,120 (March 14, 2008); quoting LaFave, Criminal Law § 17.4, p. 872 (4th ed. 2003). CONCLUSION WHEREFORE, the defendant, John L. Doe, respectfully requests this Court to dismiss Count 1 because it is based upon an unconstitutional statute or, in the alternative, require the State to prove at trial that he knew the alleged victim was under 16 years old. Respectfully Submitted,
________________________ Jessica J. Travis, KS #19431 The Travis Law Firm, LLC 130 N. Water Street, Suite A Olathe, KS 66061 Ph: 913-782-8200 Fx: 913-782-2283 ATTORNEY FOR DEFENDANT
Certificate of Service
I hereby certify that on the 28th day of October, 2008, the foregoing Motion was faxed to Amy McGowan, Douglas County Prosecutor, at __________________________ and mailed to John Doe, **.
