Man fights child-sex charges, claim­ing law says girl is older

The Wichita Eagle - - News - As­so­ci­ated Press

A Lawrence man ac­cused of sex­u­ally as­sault­ing a 15-year-old girl un­suc­cess­fully ar­gued that he should not be charged with tak­ing ad­van­tage of a child be­cause she was ac­tu­ally 16 un­der a Kansas law that says life be­gins at fer­til­iza­tion.

De­fense at­tor­ney Cooper Over­street ar­gued in a mo­tion that Jor­dan Ross, 21, of Topeka, could not be con­victed of ag­gra­vated in­de­cent lib­er­ties with a child be­cause, un­der the state’s def­i­ni­tion of life, the al­leged vic­tim would be 16, rather than 15. The age of con­sent in Kansas is 16.

“Be­cause of re­cent statu­tory amend­ments es­tab­lish­ing that life be­gins at fer­til­iza­tion, the al­leged vic­tim in this case should be con­sid­ered by this court as nine months older than her date of birth,” ac­cord­ing to Over­street’s mo­tion. “Be­cause of this, at the time of the al­leged in­ci­dent, the al­leged vic­tim would have been 16 years old and thus a charge of ag­gra­vated in­de­cent lib­er­ties is fac­tu­ally im­pos­si­ble.”

Dou­glas County District Judge James McCabria re­jected Over­street’s mo­tion, the Lawrence Jour­nalWorld re­ported .

In ar­gu­ing against Over­street’s mo­tion, pros­e­cu­tor Al­ice Walker cited a Kansas Court of Ap­peals opin­ion that said the state’s law defin­ing life as be­gin­ning at con­cep­tion ap­plied to pub­lic health codes, not to crim­i­nal codes. Age is cal­cu­lated by birth date, and re­defin­ing that to equate with “life be­gin­ning at con­cep­tion” would “in­tro­duce an un­ac­cept­able uncer­tainty into the crim­i­nal law,” ac­cord­ing to the opin­ion.

“Courts must con­strue statutes to avoid un­rea­son­able or ab­surd re­sults,” the ap­peals judges wrote.

Ross was sched­uled to go to trial Mon­day but McCabria de­layed the trial af­ter Over­street said he needed time to change his de­fense plan.

Ross was charged a year ago with rap­ing the girl at a Lawrence party in Au­gust 2017, when Ross was 19 and the girl was 15. Over­street had planned to ar­gue the sex was con­sen­sual. Re­cently, prose­cu­tors added the al­ter­na­tive charge of ag­gra­vated in­de­cent lib­er­ties with a child, which does not con­sider con­sent as a fac­tor. The state needs to prove only that the vic­tim was 14 or 15 when the sex oc­curred and that the de­fen­dant acted “in­ten­tion­ally, know­ingly, or reck­lessly,” Walker said in a court fil­ing.

When the judge al­lowed the charge to be added, Over­street filed the “life be­gins at fer­til­iza­tion” mo­tion.

A hear­ing to set Ross’ new trial date is sched­uled for Jan. 3. He re­mains free on $20,000 bond.

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