What Is Rape and Sodomy?

Rape, in general, is having or attempting to have sexual intercourse with another person without that person’s consent. Fairly similar to rape, sodomy is any form of “deviate” sexual intercourse, or non-procreative sexual conduct, which also occurs without the other person’s consent. No matter what it’s called, any accusation of sex-without-consent is serious, and you need to keep in mind the potential consequences that can follow.

Whether personally accused by someone or criminally charged by the state, an allegation of rape or sodomy almost automatically has devastating effects on a person’s reputation. If accused by someone without being formally charged, the people around you may start acting differently toward you. You could lose your family, friends, job, etc. If you are criminally charged, not only could your personal relationships suffer, but you could also face many years in jail and be required to register as a sex offender if convicted.

You MUST take immediate steps to prevent most, if not all, of the destruction that can occur!

As a former prosecutor, Kansas City criminal defense attorney Gregory Watt knows how these cases are tried and can effectively defend any criminal charges against you. If you have been charged with rape or sodomy in Missouri or Kansas.

As mentioned above, the difference between rape and sodomy is whether or not the sexual intercourse is “deviate.” Missouri explicitly uses the term “deviate” to make the distinction, but Kansas does not. For ease of understanding, however, the terms “deviate” and “non-deviate” will be used here.

Rape is non-deviate sexual intercourse without the other person’s consent. In Missouri, non-deviate “sexual intercourse” is defined as “any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results.” The definition in Kansas is similar, but it includes penetration by a finger or any object, unless in the performance of a medical examination or lawful body cavity search.

(Mo. Rev. Stat. § 566.010(4); Kan. Stat. Ann. § 21-5501(a))

On the other hand, sodomy is deviate sexual intercourse without the other person’s consent.

In Missouri, this means any contact between one person’s genitals and another person’s hand, mouth, tongue or anus for the purpose of gratifying sexual desires or terrorizing the victim. It can also be genital or anal penetration with a finger or other object for similar purposes.

(Mo. Rev. Stat. § 566.010(1))

In Kansas, this means oral contact with genitalia, anal penetration by a body part or object, or sexual contact (oral, anal, or genital) between a person and animal.

(Kan. Stat. Ann. § 21-5501(b): Definition of “Sodomy”)

Missouri breaks both rape and sodomy down into two types of offenses: Rape/Sodomy and Statutory Rape/Sodomy. Both of those are additionally broken down into two degrees.

Rape or sodomy in the first degree involves non-deviate or deviate sexual intercourse (defined above) with another person who is incapable of giving consent or forced into giving consent. A person is incapable of giving consent if, for example, he or she is unconscious, extremely and voluntarily intoxicated, or suffering from some sort of mental impairment or disease. Consent by force can mean anything from physical threats of violence to drugging a person without his or her consent.

Conviction of first-degree rape or sodomy may result in life imprisonment. If serious physical injury is inflicted or a deadly weapon is used, the minimum sentence one may receive is ten years, with a maximum sentence of life imprisonment. Additional restrictions on eligibility for probation or parole apply if the victim is less than twelve years old.

(Mo. Rev. Stat. §§ 566.030 & 566.060)

Rape or sodomy in the second degree involves non-deviate or deviate sexual intercourse (defined above) with another knowing that the other person has not consented.

This is a class D felony carrying penalties of up 7 years imprisonment and a fine of $10,000.00.

(Mo. Rev. Stat. §§ 566.031 & 566.061)

Statutory rape or sodomy in the first degree is non-deviate or deviate sexual intercourse (defined above) with someone younger than 14. The range of punishment is 5 years to life. If the victim is younger than 12, serious physical injury is inflicted, or a deadly weapon is used, the range of punishment is 10 years to life.

(Mo. Rev. Stat. §§ 566.032 & 566.062)

Statutory rape or sodomy in the second degree occurs if a person 21 years or older has non-deviate or deviate sexual intercourse (defined above) with someone younger than 17. This is a class D felony and carries a range of punishment of up to 7 years in prison and up to a $10,000.00 fine.

Other Issues in Missouri

Oftentimes you hear that the victim “gave consent” or “looked older.” In Missouri, “consent” is absolutely no defense if the child is under 12, and “believing the victim was older” is only a defense in certain circumstances.

In Kansas, rape is considered a Security Level 1, person felony, if a person knowingly engages in non-deviate sexual intercourse (defined above) with a victim who 1) does not have capacity to consent, 2) “consents” by force or threat, 3) cannot consent due to unconsciousness, or 4) is younger than 14.

Incapacity to consent in this sense means that the alleged offender knew or could reasonably know that the victim either had a mental deficiency or disease or is under the influence of some sort of intoxicating substance. If the offender is 18 or older, and the victim is younger than 14, the offense is instead an “off-grid” person felony.

A single Security Level 1, person felony, carries with it potential imprisonment of up to 267 months (22 years, 3 months); additional felonies can make a sentence even longer. An “off-grid” felony conviction, however, can result in life imprisonment.

(Kan. Stat. Ann. §§ 21-5503(a)(1)-(3), (b)(1)(A), & (b)(2))

Rape is considered a Severity Level 2, person felony, if consent for sexual intercourse is obtained through a knowing misrepresentation that either 1) the sex was medically or therapeutically necessary or 2) it was legally required.

This can result in imprisonment of up to 200 months (16 years, 8 months).

(Kan. Stat. Ann. §§ 21-5503(a)(4)-(5) & (b)(1)(C))

In Kansas, sodomy can be prosecuted as “criminal sodomy” or “aggravated criminal sodomy.”

The specific language of the statute regarding “criminal sodomy” states that,

Criminal sodomy is:

• Sodomy between persons who are 16 or more years of age and members of the same sex;
• sodomy between a person and an animal;
• sodomy with a child who is 14 or more years of age but less than 16 years of age; or
• causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person

(Kan. Stat. Ann. § 21-5504(a)) As written, this statute criminalizes any of these acts of sodomy (Kansas definition above), regardless of whether consent has been given. This means that consensual, same-sex relations are statutorily illegal in the State of Kansas. Criminalizing consensual relations between persons of the same sex, however, was held unconstitutional more than ten years ago in Lawrence v. Texas, 539 U.S. 558 (2003). Therefore, it’s not likely that any conviction could be upheld under the first provision unless one of the parties was under 18 and the other was older than 18. A person could still be charged under the remaining three provisions.

Criminal sodomy with an animal is considered a class B nonperson misdemeanor, which can result in up to 6 months imprisonment and a fine of up to $500. Criminal sodomy involving a child of 14 or 15 years of age is a Severity Level 3, person felony, which can result in 100 months imprisonment (8 years, 4 months).

(Kan. Stat. Ann. § 21-5504(c)(1) 21-6602(a)(2), & 21-6611(b)(2))

Aggravated criminal sodomy, is sodomy involving a child under the age of 14 or a victim who does not consent to the sodomy. Lack of consent in these circumstances can come by way of force or threat, the victim’s unconsciousness, or the victim’s inability to give consent due to mental deficiency or intoxication.

(Kan. Stat. Ann. § 21-5504(b))

Aggravated criminal sodomy is a Severity Level 1, person felony, carrying with it up to 267 months in prison. However, if the offender is 18 or older, and the victim is under 14, it is considered an “off-grid” felony with the potential consequence of life imprisonment.

In Missouri, a person convicted of rape is required to register as a sex offender with the State. That person can have his or her name removed from the registry after ten years ONLY if convicted of statutory rape in the second degree. If the person convicted in under 19 years old, and the victim was at least 13, the person convicted can petition for removal after two years from the required date of registration.

In Kansas, lifetime offender registration is required for convictions of rape, criminal sodomy with a child of 14 or 15, and aggravated criminal sodomy. Kansas also requires 25-year registration for criminal sodomy if one party was 16 or 17, and the other was over 18.

If you have been charged with rape or sodomy in either Missouri or Kansas, the stakes are high. You need to hire a trial lawyer who knows the process and can protect your rights.