On Thu, Apr 4, 2024 at 1:26 PM Max Kautsch <maxk@kautschlaw.com> wrote:
Rep. Probst:
I write in response to your recent Substack post to explain how “acts of homosexuality” are, indeed, included in the definition of “sexual conduct” which is incorporated by reference from K.S.A. 21-6402(d)(8) into SB 394.
In your piece, you argued that the definition of “sexual act” was limited to “acts of homosexual and heterosexual intercourse” rather than “acts of homosexuality.” As you put it in your piece:
“Harmful to minors —> Sexual Conduct —> any act of sex as defined, including acts of homosexual and heterosexual intercourse.”
Although I wish that reading were correct, it is not, due to the plain language of the law and its inclusion of the disjunctive “or” in K.S.A. 21-6402(d)(8).
Under K.S.A. 21-6402(d)(8), “sexual conduct means acts of masturbation, homosexuality, sexual intercourse or physical contact…” (emphasis added). The statute then goes on to describe categories of physical contact prohibited under the law, which include contact with a “person’s clothed or unclothed genitals or pubic area or buttocks or with a human female’s breast.”
Although legislative intent ultimately controls much of how a statute is interpreted, the plain language is the first step of the analysis, and “[t]he connecting word ‘or’ ordinarily indicates that the connected items are in the disjunctive.” State v. Johnson, 289 Kan. 870 (2009). Moreover, the inclusion of the term “homosexuality”, if included only to prohibit homosexual intercourse, would be unnecessary because all types of intercourse are already prohibited by the inclusion of the words “sexual intercourse” in the definition of “sexual conduct.” Because “[t]here is a presumption that the legislature does not intend to enact useless or meaningless legislation,” the inclusion of the term “homosexuality” is very likely intended to create a separate prohibition. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603 (2006).
Given the statute’s plain language and the presence of the word “or”, the applicable presumptions strongly weigh in favor of the notion that the legislature, when it enacted K.S.A. 21-6402, intended to lump “homosexuality” with other sexual acts. As a result, the statutory definition for “sexual conduct” includes four separate categories of “sexual conduct”: masturbation, homosexuality, sexual intercourse, and physical contact as described in the law.
Therefore, absent express legislative history to the contrary, it is correct to say that, using the parlance from your piece, that “Harmful to minors —> Sexual Conduct —> homosexuality.” Other correct uses of your parlance would be as follows:
“Harmful to minors —> Sexual Conduct —> masturbation.” “Harmful to minors —> Sexual Conduct —> sexual intercourse.” “Harmful to minors —> Sexual Conduct —> physical contact with a person’s clothed or unclothed genitals or pubic areas or buttocks or with a human female’s breasts”
Although I wish the interpretation you proposed in your piece were correct because it would make the LGBTQ+ community safer, the plain language of the statute leaves the possibility open that mere acts of homosexuality could be included in the images or descriptions swept up under SB 394.
To correct this constitutional infirmity, it seems the Legislature should take steps similar to its counterpart in Virginia, where that body removed “homosexuality” from its definition of “sexual conduct” for precisely the concerns outlined in the Reflector editorial.
Thank you, both for publishing your thoughts and for this opportunity to respond. In the future, if you disagree with a point I make in the media, feel free to reach out to discuss. I would also be happy to continue this dialogue surrounding SB 394 if I can be of assistance.
On Thu, Apr 4, 2024 at 3:25 PM Jason Probst <thatguyinhutch@gmail.com> wrote:
Max,
Thanks for the reply, and the conversation.
I can see your reasoning but remain unconvinced. Certainly I’m not convinced that the photo of two men exchanging vows meets the definition of pornography in SB394, or the statutory definition of harmful to minors. That we’re talking about a definition for sexual conduct implies, I think, some level of recognition that it’s sexual conduct we’re talking about and not a benign photo.
I do agree that it would be wise and clarifying for the legislature to remove the word homosexuality from the definition altogether. That would eliminate any ambiguity.
Thanks,
Jason
On Thu, Apr 4, 2024 at 3:46 PM Max Kautsch <maxk@kautschlaw.com> wrote:
Jason, thanks for your response. Although you say you “remain unconvinced,” my reasoning was apparently compelling enough for you to also say that removing the offending word from the existing statute would be “wise.” Such an outcome would resolve the concerns raised in the Reflector article. Thank you for listening.
I do agree with you that the likelihood the bill would be applied in a way that would result in adverse state action as a result of an image of two men exchanging rings is remote, but the bill is simply unconstitutional on its face due to the inclusion of the word “homosexuality.” Moreover, unfortunately, given my over 20 years practicing law in this state, it is not hard to imagine a prosecutor with questionable motives looking in every law possible to propagate hate. The way the bill is worded provides that opportunity, chilling the speech of an already marginalized community as a result.
All that needs to happen to correct his [sic] issue, as you suggest, is the removal of one word from an existing statute. If there’s anything I can do to assist please let me know.