Kansas Court of Appeals decides if sex by blackmail is 'rape'

By Pat Murphy The Daily Record Newswire BOSTON -- A Kansas woman testified that the only reason she agreed to have sex with her ex-husband was to prevent his disclosure of an embarrassing extramarital affair. Did the ex-husband commit rape? Some states have amended rape statutes to encompass sex by extortion. Kansas is not one of those states. So the question boiled down to whether prosecutors could show that the ex-husband overcame his victim by "force or fear." The facts are these. George Brooks and J.P. divorced in 2006 after a ten-year marriage. According to prosecutors, shortly after the divorce was final, Brooks accessed J.P.'s e-mail account, apparently intent on stirring up trouble for his ex-wife. Brooks hit pay dirt, finding e-mails showing that J.P. was having an extramarital affair with a coworker at her work. On May 7, 2006, Brooks telephoned J.P. to reveal he had copies of the e-mails. To make his point, Brooks read portions of the revealing messages over the phone, making J.P. sick to her stomach. According to J.P., Brooks concluded the telephone call by saying he would be coming over to her house for sex that evening. As promised, Brooks arrived at J.P.'s home around 8:30. Brandishing a folder containing copies of the embarrassing e-mails, Brooks threatened revealing the affair to J.P.'s employer and to her coworker's wife if she did not do as he said. According to J.P., she made clear that she did not want to have sex and it would be against her will. This made no difference to Brooks, though, and he ordered J.P. to take off her underwear. J.P. submitted after Brooks allegedly became "agitated" with his ex-wife's objections. She sat in a chair with her hands over her face and her eyes closed while Brooks had intercourse with her. After the act was done, Brooks proclaimed that it had all been a "test" and he would be back later in the week for more sex. Why did J.P. submit to Brooks? At trial, J.P. failed to characterize Brooks' agitation. Nor did J.P. testify that she thought Brooks would have physically harmed her had she refused. Apparently, it all boiled down to avoiding embarrassment and her fear that the atmosphere of her workplace would be poisoned by the disclosure of the affair. But with the threat of a repeat performance, J.P. contacted her lawyer who told her to call police. Officers arrested Brooks, who was charged with rape, two counts of blackmail, and breach of privacy. A jury found Brooks guilty of those charges and he was sentenced to 155 months in prison on the rape conviction, 12 months in prison on each blackmail conviction, and 12 months in the county jail on the breach of privacy conviction. The rape conviction was the big ticket item, so naturally it was the focus of Brooks' appeal. Friday, the Kansas Court of Appeals concluded that, no matter how evil, Brooks' actions did not fit within the state's definition of a rape offense. Specifically, the court determined that the fear engendered by Brooks' threatened disclosure of an embarrassing affair was not of a kind that would support a finding that he overcame J.P. by "force or fear" within the meaning of the state's rape law. The court explained that the "emotional impact of the disclosure on J.P. may have been substantial. She certainly thought it would be; she submitted to Brooks' demand for sex to avoid precisely that possibility. We do not diminish those considerations. ... "But the threat Brooks made did not involve any present or future application of force and, in turn, the response it provoked in J.P., however disquieting or upsetting, did not constitute fear of the sort that supports a rape charge under the Kansas law. As a result, the jury's verdict rests on insufficient evidence to demonstrate the statutory elements of rape." So the court overturned Brooks' rape conviction. The court tacked on a minor victory for Brooks, finding that the man did not "intercept" a communication within the meaning of the state's breach of privacy law by copying e-mails J.P. had sent more than 6 months earlier. The result leaves Brooks facing only a two-year prison term on his blackmail convictions, which hardly seems right. The court agreed, confessing that it was "dismayed" by the result, while explaining that it felt constrained by the black letter law. "The outcome leaves J.P. without a full measure of justice for what Brooks did to her in this case," the court admitted, called for new legislation to cure the deficiency in the law. "The criminal code simply does not speak directly to the criminality of threatening to invade a person's privacy or to expose him or her to public ignominy as a means of extracting sexual relations," the court explained. "The code fails to consider the intersection of those two strands of antisocial behavior to carry out a single criminal endeavor." Published: Mon, Oct 17, 2011