IS A SEXUALLY VIOLENT CRIME COMMITTED BY A PREDATORY SEX OFFENDER A STATUTORY COMPELLING REASON FOR UPWARD DEPARTURE?

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. Tiffany, 986 P.2d 1064 (Kan. 1999).

This case answers the following question:

Is a sexually violent crime committed by a predatory sex offender a statutory compelling reason for upward departure?

The issue in this case is whether the crime committed by Tiffany should be considered a sexually violent crime, and therefore, whether there is a statutory compelling reason for upward departure since he is a predatory sex offender? Whether the trial court’s findings constitute substantial and compelling reasons for departure is a question of law.

In this case, Tiffany was convicted of aggravated indecent liberties with a child. The child was the 7-year-old granddaughter of Tiffany’s friend. Based on evidence presented at trial, Tiffany had the child masturbate him, and the child saw him ejaculate. At trial, the State admitted other evidence of prior uncharged sex crimes that Tiffany had committed, along with a prior conviction for indecent solicitation of a child and rape. Tiffany’s two daughters both testified that Tiffany exposed his penis to the girls starting at a young age, and that they had rubbed his penis upon his request. Tiffany’s niece testified that she had oral sex and sexual intercourse with Tiffany beginning at age 14, and that she had sex with Tiffany’s son upon Tiffany’s request. The son testified that he had sex with his cousin upon Tiffany’s request, and after receiving demonstrations and oral instructions from Tiffany. The Court of Appeals held that the reasons for departure were supported by the evidence in the record and constituted substantial and compelling reasons to depart from the presumptive sentencing grid.

Whether the trial court’s findings constitute substantial and compelling reasons for departure is a question of law. Under current Kansas state law, the trial court found that Tiffany is a predatory sex offender and that aggravated indecent liberties with a child is a sexually violent and a sexually motivated offense. Despite the fact that the conduct with the 7-year-old child was not a pattern of abuse, and that no touching or penetration occurred, it is still sufficient to be considered a sexually violent crime. Tiffany argued that his prior rape conviction should not be considered since it had occurred many years ago, but the sentencing court decided not to disregard the prior conviction. Therefore, Tiffany was still considered a predatory sex offender under Kansas statute. Under the Kansas state sentencing guidelines, there is a nonexclusive list of aggravating factors which may be considered in determining whether substantial and compelling reasons exist for departure, including a defendant’s current crime of conviction is a crime of extreme sexual violence and he or she is a predatory sex offender.

The Supreme Court of Kansas affirmed the decision of the lower courts, finding that the reasons for departure from the presumptive sentencing grid were substantial and compelling. Tiffany meets the definition of a predatory sex offender and the current crime is considered a crime of extreme sexual violence, therefore under the sentencing guidelines, the court was within its power to depart.