## Facts

- Ira Wayne Flynn and A.S. spent time together after work, went to a friend’s house, and later left together in A.S.’s car.
- The State charged Flynn with kidnapping, aggravated kidnapping, aggravated criminal sodomy, and three counts of rape under K.S.A. 21-3502(a)(1).
- The remaining conviction concerned one rape count based on intercourse occurring on the ground near A.S.’s car.
- Flynn testified A.S. initially consented to sex on the hood of the car, later objected to intercourse on the ground, and he slowed but did not immediately stop because he was unsure she was serious; he claimed he stopped shortly after she insisted she was serious.
- A.S. testified she did not consent and that the sexual acts were accomplished through force or fear.
- After the incident, Flynn left voicemail messages indicating he had “f***ed up,” that A.S. could “call the cops,” and that he would “do a couple years,” followed by an apology.
- At trial, the court instructed on the elements of rape (nonconsensual intercourse by force or fear) but did not give an additional instruction addressing withdrawal of consent after penetration.
- The jury acquitted Flynn of all charges except the ground-rape count.
- The Court of Appeals reversed and ordered a new trial based on failure to instruct on post-penetration withdrawal of consent; the State sought review.

## Issues

1. Whether K.S.A. 21-3502(a)(1)(A) covers intercourse that begins with consent but becomes nonconsensual after the victim communicates withdrawal of consent and the defendant continues through force or fear.
2. Whether, when evidence supports initial consent followed by communicated withdrawal, the trial court must give a specific instruction explaining that theory of rape.
3. Whether prior language stating a defendant is entitled to a “reasonable time” to stop after withdrawal of consent should be retained.
4. Whether omission of the post-penetration withdrawal instruction constituted clear error requiring reversal.

## Decision

- The Kansas Supreme Court held the rape statute prohibits all nonconsensual intercourse accomplished through force or fear, including continued intercourse after the victim communicates withdrawal of consent post-penetration.
- For offenses committed before July 1, 2011, when evidence suggests initial consent followed by communicated withdrawal after penetration, the trial court must give an additional instruction explaining that rape may occur after initial penetration.
- The court disapproved prior language that a defendant is entitled to a “reasonable time” to stop after consent is withdrawn and communicated.
- The court concluded the missing instruction was clear error in this case because Flynn’s testimony directly raised the withdrawal theory and jurors could have believed initial consent foreclosed rape liability.
- The court affirmed the Court of Appeals, reversed the conviction, and remanded for further proceedings.

## Legal Principles

- Rape under K.S.A. 21-3502(a)(1)(A) includes intercourse that becomes nonconsensual after communicated withdrawal of consent, if the defendant continues the intercourse through force or fear.
- When evidence supports initial consent and later communicated withdrawal after penetration (for pre–July 1, 2011 offenses), the jury must be instructed that:
  - initial consent to penetration does not bar a rape conviction, and
  - guilt requires withdrawal of consent, communication of that withdrawal to the defendant, and continued intercourse through compulsion.
- The notion that a defendant has a “reasonable time” to comply after consent is withdrawn is not part of the governing rule.
- Under Kansas clear-error review for unrequested instructions, reversal is warranted when the appellate court is firmly convinced the jury might have reached a different verdict with a legally appropriate instruction.

## Conclusion

The court ruled that Kansas rape law reaches intercourse that starts consensually but continues by force or fear after the victim communicates withdrawal of consent, required a specific instruction when that theory is supported by the evidence in pre-2011 cases, rejected any “reasonable time to stop” buffer, and ordered a new trial because the failure to give the instruction was clear error.


State v. Flynn, 329 P.3d 429 (Kan. 2014)