In modern society, it’s hard to imagine that any laws could legitimately prohibit consensual sexual activity between adult participants (and in some cases, between consenting teens). However, Kansas, like some other states, has these types of laws on the books.
Can States Regulate Consensual Sexual Activity?
The main argument that states can’t regulate consensual, non-commercial sexual activity between adults is the 2003 U.S. Supreme Court decision in Lawrence v. Texas. This case struck down the Texas same-sex sodomy law deciding that the state has no business regulating private sexual conduct because adults have a constitutional right to liberty and privacy in this matter. Another problem with that particular sodomy law was that it discriminated between same-sex and opposite-sex individuals doing the same activity. This sodomy case can be extrapolated to apply to other cases of sex between consenting adults, such as if everything besides the “missionary position” was outlawed.
The various legally prohibited consensual activities in Kansas are listed in the table below with their penalties.
||Although widely viewed as unconstitutional because of the Lawrence v. Texas case described above, Kansas also has an adultery law on the books. It’s not just that people have a right to sexual privacy; it’s also a question of whether the state has an interest in banning right to certain, consensual activities. However, this is a different matter as to whether it is moral or “right” to cheat on one’s spouse, but that is a matter for the religious sphere, which is constitutionally required to be separate from the government.
The adultery law under Kansas Statutes Section 21-5511: Adultery outlaws engaging in sexual intercourse or sodomy when either or both of the parties involved are married or aren’t married, but know the other person is married.
|Penalty for Adultery
||If Kansas were to try to enforce the adultery law, the penalty is a Class C Misdemeanor, which can only be penalized, at most, with one month in jail and a $500 fine.
||Kansas purports to make same-sex sodomy (oral sex, anal sex, or sex with an animal) is illegal under Kansas Statutes Section 21-5504: Criminal Sodomy.
Again, at least as to same-sex adults, this law has been invalid since Lawrence v. Texas. Therefore, despite it being on the books, it’s unconstitutional and unenforceable as to consenting adults of the same-sex. However, for the protection of animals and to prevent cruelty of animals, prohibiting sex with animals is a valid law.
Also, you still can’t orally or anally rape anyone, and especially not a child, where penalties are increased significantly.
|Penalty for Sodomy
||The penalty is only a Class B nonperson misdemeanor if the person is over 16 years old (and not rape) or it’s with an animal. The sentence will be up to six months in jail and a $1,000 fine.
If the teen is 14 or 15 years old, it’s a Level 3 person felony (meaning a crime against a person). Kansas uses a sentencing grid where felonies are sentenced based on prior criminal history. A Level 3 felony range is about 4.5 years to 20.5 years, plus an up to $300,000 fine.
Aggravated criminal sodomy is sodomy of a child under 14 or sodomy with a non-consenting victim (forced, unconscious, or unable to consent due to drugs, alcohol, or mental condition). This is a level 1 person felony and for a child victim is an “off-grid” offense for those over 18 years old, meaning you could spend the rest of your life in prison.
|HIV Exposure and Compelled Testing of Offenders
||In a crime where transmission of fluids may have taken place (rape, bloody assault, etc.), the court will order infectious disease testing (including HIV and Hepatitis B) of an arrested and charged person. This is done at the request of either the victim or district attorney or if the defendant indicated to an officer that he or she is infected. The offender is required to pay for the tests.
|Other Crimes Relating to Consensual Sex Acts
||Another area related to consensual sex is “lewd and lascivious behavior.” Essentially this is publically engaging in otherwise lawful sex or sodomy knowing others could view it. Also, it’s publically exposing your genitals to others who didn’t consent to see them, for the arousal of anyone.
However, this isn’t exactly consensual activity, because although the offender(s) consented, the persons made to view it against their wills didn’t consent.
The penalty is a Class B misdemeanor if in the presence of people at least 16 or older or a Level 9 person felony if in the presence of children under 16. A level 9 felony could be sentenced to anywhere from only several months probation or 17 months with at least part of that time in jail.
Note: State laws change constantly, contact a sex crimes lawyer or conduct your own legal research to verify these laws.
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