Is Kansas Safe for Dogs?

When you take a look at every new court decision that cites Lawrence v. Texas, which I do in the course of finding cases to discuss on this blog, in my newsletter, Lesbian/Gay Law Notes, and in my role as contributing writer for Gay City News, you sometimes see decisions that might be somewhat outside the boundaries of LGBT law, but are nonetheless quite interesting.  My current example, State of Kansas v. Coman, 2012 Westlaw 1066115, is Exhibit A.  As a result of this decision, the canine population of Kansas is less safe today than they were before March 30, 2012, unfortunately, but the case might provide a good text for a course in statutory interpretation.

The issue before the court was whether a man who pled guilty to a charge of bestiality must register as a sex offender under the Kansas Offender Registration Act (KORA).  Sedgwick District Court Judge Joseph Bribiesca said yes, literally applying the KORA "catch-all" provision that requires registration for anybody who commits a crime that is "sexually motivated."  The Court of Appeals said yes as well, by a 2-1 vote, the dissenter arguing that the legislature had specifically omitted bestiality from the list of registrable offenses and it should not be read back in by the court through the "catch-all" provision.  Ultimately, the Supreme Court agreed with the dissenter, ruling on March 30 that Joshua Coman should not be required to register due to the "incident with a dog" that led to his prosecution and conviction under K.S.A. 21-3505(a)(1).  The opinion for the Supreme Court was delivered by Justice Lee A. Johnson.

Justice Johnson presents a concise summary of the facts, on which I couldn't possibly improve: "Coman had previously been a roommate of Diana Sells, who had a Rottweiler dog.  Sells discovered Coman in her garage with the dog in a compromising position.  Coman told Sells that he loved the dog and wanted to see it one more time.  Sells called the police, who discovered personal lubrication in Coman's pocket.  Coman admitted to the officers that he used the lubricant to penetrate the dog's vagina with his finger."  I will refrain from any witty embellishment or speculative expansion of this spare narrative.

Kansas is one of those states that has not bothered to revise its sodomy law in light of the U.S. Supreme Court's decision in Lawrence v. Texas (2003), which held that states may not apply their criminal laws against same-sex couples who engage in private, consensual sex, as such conduct comes within the sphere of "liberty" protected under the Due Process Clause of the 14th Amendment.  Under K.S.A. 21-3505(a), there are three forms of criminal sodomy in Kansas: "(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal; (2) Sodomy with a child who is 14 or more years of age but less than 16 years of age; and (3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal."  The definition of sodomy, in addition to anal or oral sex involving the mouth or penis, includes insertion of any other body part into a vagina.  Coman had admitted to police that he inserted his finger into the Rottweiler's vagina, and subsequently pled guilty under 21-3505(a)(1).

KORA lists sex crimes for which registration is required under the guise of presumptively sexually violent offenses.  From the provisions of 21-3503(a), it lists (2) and (3) but does not list (1).  That is, Kansas legislators decided not to specifically list adult sodomy or bestiality as registrable offenses, as such.  Elsewhere, however, KORA subjects to registration a person who violates (a)(1) with somebody under the age of 18.  And, as pertinent to this case, the list of registrable offenses under the KORA includes a "catch-all" provision, (c)(14).  In addition to the listed registrable offenses, any other criminal act that was performed for the sexual gratification of the defendant can subject them to the registration requirement under (c)(14). 

The registration requirement involves submitting lots of personal information to the county sheriff, that is made available to the public on a state website, as well as checking in with the local law enforcement people and paying a registration fee on a regular, recurring basis, and notifying the authorities of any change of address or employment.  The Kansas statute, unlike those of many other states, does not impose residential restrictions on registered offenders, however, and prohibits local governments from doing so. For a first offender, the registration requirement lasts for ten years, and violating the registration rules subjects the offender to prosecution and serious penalties.

Coman was appealing on two grounds: He contended that his conviction violated his constitutional due process rights under Lawrence v. Texas, and that the imposition of the registration requirement was not authorized under KORA, because the legislature did not list 21-3505(a)(1) on the registrable sex offense list, the argument being that they did not intend to impose the registration requirement for bestiality.

The Supreme Court rejected the due process appeal from the conviction, on the ground that "Coman's notice of appeal did not even suggest that he was challenging his conviction.  To the contrary, the notice identified the subject matter of the appeal as the sentence imposed, and more specifically, that part of the sentence requiring him to register under KORA."  In addition, of course, Coman pleaded guilty, and under Kansas law, a guilty plea "is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto."  If he wanted to preserve his right to appeal the conviction, he should have pled "no contest," and noticed an appeal of his conviction on the grounds that the statute was unconstitutional.  Is it possible he didn't have counsel until after he filed the notice of appeal?  One wonders…

Even though any comment on the merits was unnecessary, the court couldn't resist.  Justice Johnson wrote, "Finally, to the extent that K.S.A. 21-3505(a)(1) may be unconstitutional under the narrow holding in Lawrence because it makes private homosexual conduct by two consenting adults a crime, Coman lacks standing to make that argument.  He was charged under that portion of the statute proscribing bestiality, i.e., having sex with an animal that is arguably incapable of giving consent, rather than under that portion of the statute criminalizing human homosexual conduct."  So, the court concluded, the court of appeals properly refused to consider Coman's argument challenging the constitutionality of the prohibition on bestiality.  And one rather doubts that a majority of the U.S. Supreme Court would find that bestiality comes within the liberty interest protected by the Due Process Clause!

As to the registration requirement, however, the Supreme Court concluded that the court of appeals got it wrong.  Trying to discern legislative intent in construing the registration statute is difficult, because there is a latent ambiguity here.  The legislature omitted 21-3505(a)(1) from the sex offense registration list, seemingly signalling that it did not wish to require those convicted under this section to register, but on the other hand it included a catch-all provision seemingly sweeping in all offenses that were sexually motivated. 

"The Court of Appeals found no ambiguity in the language the legislature used in the catch-all provision," Justice Johnson observed. "It points to the provision's plain language requiring KORA registration if the court, at sentencing, finds beyond a reasonable doubt that any act by the defendant in committing the crime had as one of its purposes the sexual gratification of the defendant.  There is no stated exception, such as an exemption for sex crimes omitted from the list of per se sexually violent crimes."  While agreeing with "that assessment of the statutory language," however, Justice Johnson wrote, "Yet, even crystal clear language cannot always save a statutory provision from the specter of amiguity."  Ambiguity can arise from provisions that appear clear in isolation but seem contradictory when viewed in the overall context of a statute.

"Here," wrote Johnson, "the potential conflict is contained within the same statute, triggering the concept that, when construing a legislative act to determine the legislature's intent, courts should avoid isolating any particular provision.  Rather, an act should be construed as a whole.  In that vein, the reviewing court must consider the various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible."

Perhaps the court of appeals figured that the legislature omitted (a)(1) from the list because, in effect, it wasn't going to require registration for consensual gay sex, and then expected the "catch-all" provision to pick up the non-consensual offenders.  But that doesn't really work, if one applies the catch-all provision literally, since presumably any violation of (a)(1), including consensual gay sex, would be motivated by a desire for sexual gratification.  (Rape – sexual assault - is elsewhere covered under the list of registrable offenses, of course.)

"It is counterintuitive to believe that the legislature went to the trouble of constructing a unique, bifurcated provision in subsection (c)(4) [the list of registrable sex offenses] simply to eliminate the registration requirement for the rare, if not nonexistent, circumstance where a person has sex with an animal or a person of the same sex without at least one of the purposes being sexual self-gratification," Johnson asserted.  "When viewed in that light, it is not the catch-all provision that is emasculated, as the panel majority [of the court of appeals] suggests.  That provision remains viable and useful for unlisted, nonsex crimes.  Rather, the majority's interpretation renders the omission of misdemeanor criminal sodomy in subsection (c)(4) virtually meaningless and useless, because the very act of committing the omitted crime brings the actor within the broadly cast net of the (c)(14) catch-all."  Justice Johnson also noted that another provision of KORA specifically requires registration of somebody convicted under (a)(1) if one of the parties involved is less than 18 years of age.  So, clearly, the legislature had given thought to which acts covered by (a)(1) should be subjected to registration, leaving the logical interpretation that the legislature did not generally want to impose the registration requirement on other offenders of (a)(1).

After a brief discussion of how the legislative history did not shed further light on this problem, the court rejected the court of appeals majority's argument that its interpretation should apply because it is a reasonable reading of the provision in question.  The Supreme Court insisted on applying the "rule of lenity," under which doubt as to whether a criminal provision should apply, due to ambiguity, should be resolved in favor of the defendant.  "If, as here, there are two reasonable and sensible interpretations of a criminal statute," wrote Justice Johnson, "the rule of lenity requires the court to intepret its meaning in favor of the accused."  So, in this case, only offenders under (a)(1) who have engaged in sodomy with a person under age 18 (below the age of sexual consent in Kansas) will be required to register, and the Supreme Court reversed the trial judge's imposition of the registration requirement on Joshua Coman.

Besides, it's unlikely that any individual among the canine population of Kansas can access the state's website to locate those persons convicted of bestiality and thus defend themselves by steering clear of their path….  But this ruling deprives pet-owners of potentially important information to protect their charges from unwanted human sexual attention. Toto beware!

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