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Consent Or Rape Law In Kansas

K.S.A. 21-3502(a)(1)(C) provides:

"(a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, . . .

(C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender."

The test for consent under that provision is whether the individual understands the nature and consequences of the proposed act. See State v. Juarez, 19 Kan. App. 2d 37, 40, 861 P.2d 1382 (1993), rev. denied 254 Kan. 1009 (1994).

Therefore, in order to preserve the constitutionality of the provision, the definition of "nature and consequences" must be sufficiently clear to permit the person proposing sex, and the jury, to discern whether the individual can give legal consent.

If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent.

Anything more open-ended would become impermissibly vague.

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