No Rape, No Interception

In September of 2008, a Kansas jury convicted George James Brooks III of rape and breach of privacy in violation of Kanas law. State v. Brooks, __ P.3d __, 2011 WL 4634246 (Kansas Supreme Court 2011). He appealed, which resulted in the Kansas’ Supreme Court’s issuing an opinion that addresses some interesting legal issues.

Before we get to those issues, I need to note how, according to the Kansas Supreme Court, the case arose:

Brooks and J.P. married in 1996. They separated in May 2005 and were divorced 10 months later. On May 7, 2006, . . . Brooks accessed J.P.'s e-mail account and forwarded to his e-mail account copies of communications she had with a married male coworker in August and October 2005. The e-mails indicated J.P. and her coworker had been carrying on an extramarital affair.

Later on May 7, Brooks telephoned J.P. and told her he had copies of the e-mails. He read portions of them to her during the conversation. J.P. testified at trial that hearing Brooks read the e-mails gave her a very sick feeling. She said Brooks concluded the conversation by saying he would be coming over to her house for sex that evening.

Brooks arrived . . . about 8:30 p.m. with a folder containing copies of the e-mails. He told J.P. he would give copies to her employer and to her coworker's wife if she did not do as he said. J.P. asked Brooks to leave. But he told J.P. he would carry out his threat to publicize her affair if she didn't have sex with him. J.P. told Brooks in no uncertain terms that she did not want to have sex with him and it would be against her will. He said that wasn't a problem.

Brooks then directed J.P. to take off her underwear. When she hesitated, Brooks -- in her words -- `started getting agitated.’ J.P. complied. Brooks took off his pants and put on a condom. J.P. sat in a chair, and Brooks had intercourse with her. Brooks had his hands on her legs during the act. J.P. said she had her hands over her face and her eyes closed so she would not have to look at Brooks.

When Brooks was done, J.P. asked for the e-mails. He told her that their encounter had been a `test’ and he would be back on Friday for more sex.

State v. Brooks, supra.

On Monday, May 8, J.P. told her lawyer and her counselor what Brooks had done to her the evening before. They urged her to contact the police. She did.

A detective with the Topeka Police Department took a statement from J.P. and gave her a recorder to tape any calls from Brooks. She taped a message from her answering machine and several calls with Brooks. . . . [in which he] asked for money in addition to another sexual encounter. J.P. agreed to meet Brooks on May 12. When Brooks arrived at her home, police officers arrested him.

State v. Brooks, supra.

At trial, Brooks claimed he had not had sex with J.P and that she “had given him her e-mail address and password.” State v. Brooks, supra. J.P. testified that they had sex under the circumstances described above; she did not “indicate that she thought” he “would have physically harmed her if she refused to have sex”, but she did believe he would have “disclos[ed] the affair.” State v. Brooks, supra.

After being convicted and sentenced to a “term of incarceration of 179 months”, Brooks appealed. State v. Brooks, supra. On appeal, he argued that, even if he had done what J.P. claimed, that conduct did not constitute rape under Kansas law. State v. Brooks, supra. He also argued that the breach of privacy conviction was not supported by the evidence which, he argued, did not show that he “intercepted” J.P.’s emails, as required by Kansas law. State v. Brooks, supra.

We’ll start, as the Kansas Supreme Court did, with Brooks’ challenge to the rape conviction. The court noted that Kansas law defines rape as sexual intercourse “with a person who does not consent to the sexual intercourse under any of the following circumstances:” the victim is “overcome by force or fear;” the victim is “unconscious or physically powerless” or the victim is “incapable of giving consent because of mental deficiency or distress . . . or because of the effect of any alcoholic liquor, narcotic, drug or other substance”, the influence of which was “known by” or “reasonably apparent” to the perpetrator. State v. Brooks, supra (parsing Kansas Statutes § 21-35002).

The Supreme Court then “conclude[d], with considerable reluctance,” that Brooks was not guilty of rape under the above statute. State v. Brooks, supra. It noted, first, that in its decision in State v. Wright, 290 Kan. 194, 172 P.3d 570 (2007), it had implicitly analyzed the first option – that the victim is overcome by “force or fear” – as only creating one way of committing the offense. State v. Brooks, supra.

That is, the Supreme Court found it could not analyze whether Brooks’ conduct, as established by the evidence presented at trial, overcome J.P.’s unwillingness to have sex with him either by force or by fear. State v. Brooks, supra. Instead, under its decision in Wright, the prosecution would have had to prove that what Brooks did constituted the use of force AND fear to overcome J.P.s resistance and compel her to have sex with him. State v. Brooks, supra.

The Supreme Court therefore held that Brooks’ conviction for rape had to be set aside

for insufficient evidence. . . . [T]he evidence would have to support a jury finding that J.P. was overcome by both force and fear. But the record is bereft of any evidence Brooks used force to compel J.P.'s compliance with his demand.

To the contrary, he coerced her solely with threats to expose her workplace affair. Brooks did not touch J.P. at all until sexual intercourse occurred. Physical contact that is part of the act of penetration itself does not amount to force of the type violating the rape statute.

State v. Brooks, supra. In a later section of the opinion, the court noted that even if Kansas’ rape statute could be interpreted to encompass the use of certain types of economic injury, such as a rapists’ “destroying especially valuable property” and refusing to stop unless “the victim had sexual relations with him”, that interpretation would non apply here:

Even if Brooks carried out his threat to publicize the affair, J.P., by her own reckoning, faced no economic loss or harm. She believed she would have been acutely embarrassed in the workplace, perhaps ostracized by some colleagues, and otherwise scorned or ridiculed. Those concerns certainly seem rational and legitimate.

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.

State v. Brooks, supra.

The Supreme Court then took up Brooks’ challenge to his breach of privacy conviction under Kansas Statutes § 21-4002. State v. Brooks, supra. Section 21-4002 does not exist any more; it was repealed earlier this year and its provisions incorporated into other sections of the Kansas Statutes. It was, of course, in effect at the time the events at issue in this case arose, and then defined “breach of privacy” as “knowingly and without lawful authority. . . . [i]ntercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication”. Kansas Statutes § 21-4002(a) (repealed).

The court noted that although § 21-4002(a) “antedate[d] any common use of e-mail, the parties do not dispute the medium constitute[d] `private communication’” subject to its provisions. State v. Brooks, supra. The Supreme also explained that

[t]aking the facts in a light most favorable to the State, we . . . presume Brooks did not have authorization to access J.P.'s e-mail account or to read, forward, or copy any of her electronic correspondence, including those with her paramour. The jury so found in convicting Brooks, and ample evidence supports that determination.

The evidence also shows Brooks accessed the account and obtained the e-mails on May 7, 2006, some 7 to 9 months after they were sent. The hard copies of the e-mail introduced at trial indicate J.P. composed and sent the e-mails to her coworker. The hard copies show no responses from him and, thus, no extended communication threads between the two.

State v. Brooks, supra.

The court found that the “controlling issue . . . comes down to whether accessing an e-mail from the sender's account (presumably the sent box or an archived file) months after it was composed and directed to the addressee amounts to `intercepting’ that communication as prohibited in” Kansas Statutes § 21-4002(a). State v. Brooks, supra. It explained that neither party had directed it to any Kansas appellate decisions

construing the term “intercept” or “intercepting” as used in § 21-4992 or elsewhere in the Kansas Criminal Code. We have not found such a case either. In Black's Law Dictionary 883 (9th ed. 2009), `intercept’ is defined as: `To covertly receive or listen to (a communication).’ . . .

Common usage ascribes several meanings to `intercept.’ It may mean `to stop, seize, or interrupt in progress or course or before arrival.’ Merriam–Webster's New Collegiate Dictionary 651 (11th ed. 2003). More likely applicable here, it means `to receive (a communication or signal directed elsewhere) usu[ally] secretly.’ 651.

State v. Brooks, supra.

Brooks argued for “the meaning entailing stopping or seizing something before its arrival”, but he Supreme Court found that definition made

little sense as the exclusive one for the crime of breach of privacy. The statute criminalizes, among other acts, `intercepting . . . a message by telephone[.]’ To stop a telephone call before its arrival -- that is, before the party called answers -- results in no communication at all. There would be no message to intercept. Accordingly, that definition standing alone cannot be the proper one.

State v. Brooks, supra. The court decided that

[w]hat makes more sense is a meaning reflecting covert access to the communication while in transit from the sender to the recipient without necessarily delaying or impeding the transmission. A telephone wiretap would be an example of a prohibited interception.

The communication is not disrupted or delayed, but a third party listens without authorization of the participants. The third party may also record the communication, although that is not an element of the offense.

State v. Brooks, supra. The Supreme Court also noted that while it hesitated to “draw too much of an analogy between e-mail and traditional mail, e-mail could be subject to interception during transmission from sender to recipient. We understand that to be technologically possible but somewhat unlikely.” State v. Brooks, supra. It explained that “[m]ore commonly, the privacy of e-mail communication” is compromised because “its electronic storage is compromised”. State v. Brooks, supra.

Given all this, the Supreme Court found that that

[w]hat Brooks accomplished here does not violate [§ 21-4002]. He accessed electronic copies of e-mails the writer retained after sending the communication months earlier. It is difficult to see how that amounts to intercepting those e-mails. They were not in the process of being delivered at all.

Again, to borrow a traditional letter analogy, his action was of a kind with taking an unauthorized look at a file copy of a letter sent out 6 months earlier. To consider that `intercepting’ strains any definition.

State v. Brooks, supra. (The court noted that Brooks’ conduct fell “squarely within” the scope of Kansas’ computer crime statute, i.e., the statute that makes it a crime to access a computer without being authorized to do so and copy data. State v. Brooks, supra. It also noted that this crime carried “harsher penalties” than did breach of privacy. State v. Brooks, supra. But the state didn’t charge Brooks with computer crime. State v. Brooks, supra.)

The court therefore held that the evidence,

even taken in a light most favorable to the State, fails to support the crime of breach of privacy. When Brooks accessed J.P.'s e-mail account and copied communications she had sent more than 6 months earlier, he did not `intercept’ them within the meaning of [§ 21-4002]. He could not, as a matter of law, be guilty of that offense.

State v. Brooks, supra. So it reversed his convictions for rape and breach of privacy. . . which, I assume, mean he can't be charged with any other crimes arising out of these events. State v. Brooks, supra. I assume the Constitutional prohibition on double jeopardy would bar such a prosecution.