CAN THE JUDGE GIVE ME MORE TIME IF MY VICTIM WAS PARTICULARLY VULNERABLE?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Keniston, 908 P.2d 656 (Kan. Ct. App. 1995).
This case answers the following question:
If the victim is particularly vulnerable, is that a statutory compelling reason for upward departure?
The issue in this case is whether the age of the victim is a substantial and compelling reason for an upward departure. Kansas law contains a nonexclusive list of aggravating factors to be used in determining whether substantial and compelling reasons exist for a departure sentence including: the victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender.
In this case, an 80-year-old woman was walking from her living room to her bedroom when she was grabbed from behind. Her attacker, later identified as Keniston, threw her on the floor, breaking her leg, and then he dragged her to the bedroom where he threw her on the bed, tied her up, and raped and sodomized her. The woman was later able to identify Keniston because she was able to catch a glimpse of him during the attack. After raping the woman, Keniston took several items and some cash. The woman used her Lifeline emergency transmitter to summon help after Keniston left the house. As a result of the attack, the woman suffered either a fractured pelvis or femur, and is no longer self-sufficient. The woman is primarily wheelchair bound and must live with her daughter. In addition to the physical injuries, the woman also suffered a psychological impact from the severe brutality of the attack, including flashbacks and nightmares.
The district court sentenced Keniston to 170 months for rape, 77 months for aggravated criminal sodomy, 51 months for aggravated robbery, and 34 months for aggravated burglary. The sentencing court had departed from the presumptive durational sentence on the rape conviction because the victim was particularly vulnerable due to age, infirmity, and reduced physical or mental capacity which were or should have been known by the defender.
Kansas law contains a nonexclusive list of aggravating factors to be used in determining whether substantial and compelling reasons exist for a departure sentence including: the victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender. The court found that there was convincing evidence that Keniston knew the woman was elderly, and therefore vulnerable due to her age. Keniston told an agent that he had walked into the home, where he saw an ‘older woman’ lying on the couch. By this statement alone, Keniston showed that he had the knowledge required to be aware of the particular vulnerability of a victim due to age.
The Court of Appeals of Kansas affirmed the ruling made by the trial court. The court held that due to the age of the victim, the victim was particularly vulnerable, and that was a sufficiently compelling reason for upward departure from the presumptive sentencing guidelines.