An American 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 fertilisation.
Defence 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 Court Judge James McCabria rejected Overstreet's motion, The Lawrence Journal-World 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 this week but McCabria delayed the trial after Overstreet said he needed time to change his defence 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 fertilisation" motion.
Stacey Donovan, the chief public defender in Shawnee County District Court and an adjunct professor at the University of Kansas School of Law, said she's had sex crime defendants ask her to try the "conception" argument but she never did.
A hearing to set Ross' new trial date is scheduled for early January.