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Kansas Supreme Court: Counsel Ineffective for Failing to Request ‘Voluntary Act’ Jury Instruction in Trial for Rape of Child Younger Than 14 Where Defendant Argued She Was Forcibly Raped by Purported ‘Victim’

by Douglas Ankney

The Supreme Court of Kansas held that Brooke Dinkel’s trial counsel, Roger Strubel, was ineffective because he failed to request a jury instruction on the voluntary act requirement in a prosecution for rape of a child under 14 years of age where the defense argued that the defendant was forcibly raped by the purported victim.

Dinkel was charged with 10 counts of rape of a child under 14 years of age and 10 counts of sodomy for alleged sex acts with a minor identified as K.H.

Dinkel’s defense was that (1) K.H. physically forced the first sexual encounter, (2) any sexual contact thereafter was a result of K.H. blackmailing her, and (3) Dinkel’s mental disease. The jury convicted Dinkel of two of the rape charges and acquitted her of the remaining 18 counts. Dinkel appealed, arguing, inter alia, ineffective assistance of counsel (“IAC”).

The Court of Appeals (“COA”) rejected her claim, concluding that since a defendant’s intent is irrelevant to her offenses of conviction, her attorney wasn’t ineffective for failing to argue intent to the jury. The Kansas Supreme Court then issued an opinion reversing the COA’s holding. State v. Dinkel, 465 P.3d 166 (Kan. 2020). There, the Court clarified that every crime requires a voluntary act as part of the actus reus, and “any evidence K.H. physically forced the sexual intercourse and Dinkel did not intend any of the bodily movements that resulted in the sexual intercourse with K.H.” would negate a showing that Dinkel committed a voluntary act. The Court remanded to the district court for a Van Cleave hearing [See State v. Van Cleave, 716 P.2d 580 (Kan. 1986)] to determine whether Strubel was ineffective for failing to argue that the State never established that Dinkel committed a voluntary act. The district court denied the IAC claim, and the case returned to the Kansas Supreme Court.

The Court observed “[t]he Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel.” Balbirnie v. State, 468 P.3d 334 (Kan. 2020). In evaluating a claim of ineffective assistance of counsel, courts apply a two-step test: (1) did defendant show that “counsel’s representation fell below an objective standard of reasonableness;” and (2) did the defendant show that counsel’s deficient performance prejudice the defense. Strickland v. Washington, 466 U.S. 668 (1984).

In the present case, Struble argued to the jury that K.H. raped Dinkel and thereafter blackmailed her into further sexual activity, and Strubel requested instructions on the elements of rape and blackmail. But the Court stated that nothing in Strubel’s arguments or the jury instructions told the jury how it could use those defenses.
Instead, the jury was instructed to apply the law that the trial court provided. The law, as explained by the trial court, provides that Dinkel is guilty of rape if (1) sexual intercourse occurred at certain times; (2) Dinkel knowingly engaged in the act; and (3) K.H. was under 14 years of age. The trial court instructed the jury that Dinkel acted knowingly if she was aware of the nature of her conduct.

The State established that sexual intercourse occurred at least once; that Dinkel was aware of what was happening; and that K.H. was under 14 years old. As a result, even if the jury believed Dinkel’s defense of forcible rape, the instructions offered no avenue for the jury to find her not guilty.

The Court stated that Strubel either did not know of the voluntary act requirement of K.S.A. 2012 Supp. 21-5201 (voluntary act requirement applicable to all Kansas crimes) existed or he overlooked it. But that does not excuse his missteps. See State v. Davis, 85 P.3d 1164 (Kan. 2004) (deficient performance by counsel where he was unaware of proper legal standard for asserted defense and thus failed to adequately prepare for trial). A reasonable investigation should have revealed the legal basis for the voluntary act defense and a corollary jury instruction in the instant case, the Court chided. A criminal defense attorney “is obligated to research relevant law to make an informed decision whether certain avenues will prove fruitful.” Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013).

The Court explained that “the plain language of K.S.A. 2020 Supp. 21-5201 set forth the legal basis for advancing the voluntary act defense and instructing the jury on the viability of this defense under the facts of the case.”

The Court determined that Dinkel was prejudiced because, based on her own testimony that K.H. forcibly raped her during their first sexual encounter while she just “lied there,” the evidence established that sexual intercourse occurred and that she was aware of what was happening. But no instruction was provided that told the jury she is not guilty if she was forcibly raped, i.e., she did not commit a voluntary act as required by K.S.A. 2020 Supp. 21-5201.

The Court was not unsympathetic to Struble’s plight, stating: “Lawyers will miss things; judges will miss things. But our litigants’ lives should not suffer because of our oversight.” Thus, the Court ruled that Struble’s performance was deficient because he failed to identify the statute that would have “provided legal force to Dinkel’s assertion that she was not guilty.”

The Court then ruled that Dinkel was prejudiced because, as a result of Struble’s deficient performance, no jury instruction was given allowing the jury to apply Dinkel’s defense, which inevitably led to her conviction.

Accordingly, the Court reversed her convictions and remanded the case for a new trial. See: State v. Dinkel, 495 P.3d 402 (Kan. 2021).

Writer’s note: The Court affirmed the COA’s holding that rape of a child under 14 does not require the State to prove a culpable mental state; however, the Court reached that same result for different reasons than the COA. 

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Related legal cases

State v. Dinkel

State v. Davis

State v. Van Cleave



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