State v. Brooks

317 P.3d 54 (2014)

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Nature of the Case

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Facts

D and J.P. married in 1996. They separated in May 2005 and were divorced 10 months later. On May 7, 2006, a Sunday, D accessed J.P.'s e-mail account and forwarded to his own e-mail account copies of communications she had with a married male coworker in August and October 2005. The e-mails indicated J.P. and her coworker had been carrying on an extramarital affair. On May 7, D telephoned J.P. and told her he had copies of the emails. He read portions of them to her during the conversation. J.P. got a very sick feeling as she listened. She said D concluded the conversation by saying he would be coming over to her house for sex that evening. D arrived and told J.P. that he would give copies to her employer and her coworker's wife if she did not do as he said. J.P. asked D to leave. D told J.P. that he would carry out his threat to publicize her affair if she didn't have sex with him. J.P. made it clear that she did not want to have sex with him, and it would be against her will. He said that wasn't a problem. Under continued threats of exposure, D had sex with J.P. When D was done, J.P. asked for the e-mails. He told her that their encounter had been a 'test' and he would be back on Friday for more sex. At trial, J.P. did not indicate that she thought D would have physically harmed her had she refused to have sex. But she did believe he would disclose the affair. J.P. said disclosure of the affair would have tainted the workplace and created something that 'was not a good situation.' She testified that she had no reason to think she would have been fired or would have suffered any adverse change in the terms or conditions of her employment were the affair to come to light. J.P. stated she had sex on May 7 only because he had the emails and threatened to expose her workplace affair if she did not submit. She contacted the police and taped additional calls wherein D asked for money in addition to another sexual encounter. J.P. agreed to meet with d on May 12. When d arrived at her home, police officers arrested him. D was charged with one count of rape, one count of attempted rape, two counts of blackmail, and one count of breach of privacy. The jury found Ds not guilty of attempted rape and convicted him on all of the remaining counts. D appealed. D argued that the State failed to present sufficient evidence that J.P. was overcome by either force or fear when she submitted to having sex with him. Accordingly, he argued that his conviction for rape had to be reversed due to insufficient evidence. If force or fear established alternative means, then the evidence presented at trial had to be sufficient to support each means. The court reasoned that there must be some commonality or relationship between the type of force that suffices to violate the rape statute and the fear that does. In other words, the victim must be fearful of the sort of force contemplated in the statute. Absent that connection, force, and fear would amount to alternative means of committing rape. e court interpreted force as requiring a victim to be overcome by the use of actual or physical force against the victim, another person, or property. It then construed 'fear' to mean fear resulting from the use or threat to use force-as that term was defined by the court. The court noted that 'the record is bereft of any evidence D used force to compel J.P.'s compliance with his demand. To the contrary, he coerced her solely with threats to expose her workplace affair. D did not touch J.P. at all until sexual intercourse occurred. It found that D's threat to publicize J.P.'s affair 'did not involve any present or future application of force and, in turn, the response it provoked in J.P., however disquieting or upsetting, did not constitute fear of the sort that supports a rape charge under the Kansas law. It reversed the conviction, and P appealed.