WILL I GET A LESSER PUNISHMENT IF THE VICTIM WAS A PARTICIPANT IN THE CRIME I WAS CONVICTED OF?
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. Sampsel, 997 P.2d 664 (Kan. 2000).
This case answers the following question:
If the victim was an aggressor or participant, is that a statutory compelling reason for downward departure?
Did the trial court have substantial and compelling reasons for a downward departure? The statutory nonexclusive list of mitigating factors that may be considered to determine whether substantial and compelling reasons for a departure exist includes: the victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
In this case, a minor and her friend were at a home with four adults, including Sampsel, consuming alcohol. At one point in the evening, the minor asked one of the other adults, Tatman, if the minor could have sex with Sampsel. Tatman responded that the minor could do whatever she wanted, and Tatman later testified that before the minors left the house at 8:30, they “were begging for sex”. The minors left for about half an hour before returning to the adult’s home. Upon returning, the minor consumed another beer, had approximately seven shots, and drank from an open bottle. The minor remembered kissing Sampsel some time after this, and that the two had touched each other. The minor became dizzy and does not remember anything until she woke up on a bed with her friend and vomit all over the bed. The minor had all of her clothing on at this time, but later discovered that she did not have her underwear on. The minor arrived at her home close to 2:00 am, and her mother took her to a hospital where rape tests were performed. The examining physician told the police that he believed the minor had been raped. Sampsel later admitted to having consensual sex with a girl whose name he did not know. Sampsel claimed that the girl actively participated in sexual intercourse, even requesting that he use protection. Sampsel was found guilty of all charges. Sampsel moved for downward dispositional and durational departures because the complainant was a voluntary participant.
The statutory nonexclusive list of mitigating factors that may be considered to determine whether substantial and compelling reasons for a departure exist includes: the victim was an aggressor or participant in the criminal conduct associated with the crime of conviction. In the motion for a dispositional and durational departure, Sampsel argued that the complainant willingly consumed alcoholic beverages, voluntarily engaged in sexual contact with Sampsel, and was not coerced or forced to engage in sexual intercourse with Sampsel. The willing participation of a female victim, while no defense to a charge of statutory rape, may properly be considered in imposing punishment, and constitutes a substantial and compelling reason for departure. The court found that the testimony from Tatman and Sampsel affirmed that the minor was a participant in the criminal conduct associated with the crime of conviction.
Finding that the minor was a participant in the criminal conduct associated with the crime of conviction, the court then discussed whether a single substantial and compelling reason may justify a departure sentence. In Kansas, there is no legal requirement that all the reasons given by a sentencing court to support a departure sentence can be substantial and compelling if one or more of such factors relied upon is substantial and compelling.
The Supreme Court of Kansas held that the departure sentence was affirmed because the victim was an aggressor or participant.