photo by: Richard Gwin

In what experts call a long-shot argument, a lawyer in a Lawrence rape case tried to get a charge dismissed by claiming that under Kansas law, the victim’s “life begins at fertilization.”

Since that would make the girl 16, not 15, when the incident occurred, she can’t be the victim of aggravated indecent liberties with a child, defense attorney Cooper Overstreet wrote. The age of consent in Kansas is 16.

“Because of recent statutory amendments establishing that life begins at fertilization, the alleged victim in this case should be considered by this court as nine months older than her date of birth,” according to Overstreet’s motion to dismiss the child sex crime charge. “Because of this, at the time of the alleged incident, the alleged victim would have been 16 years old and thus a charge of aggravated indecent liberties is factually impossible.”

Douglas County District Court Judge James McCabria did not agree.

He denied the motion, according to the Douglas County District Attorney’s Office. Prosecutor Alice Walker backed her arguments with an unpublished Kansas Court of Appeals opinion.

The Kansas abortion regulation statute defining life beginning at conception was adopted under the public health code and doesn’t apply to the criminal code, according to the opinion. Age is commonly calculated by birth date, and redefining that to equate with “life beginning at conception” would “introduce an unacceptable uncertainty into the criminal law.”

“Courts must construe statutes to avoid unreasonable or absurd results,” appeals judges wrote.

A jury trial for Jordan K. Ross, 21, of Topeka, was supposed to begin Monday.

photo by: Douglas County Sheriff’s Office

However, in addition to denying the “life begins at fertilization” motion, McCabria agreed to push back Ross’ trial at the defense’s request. Overstreet said he needed time to change his defense plan, including consulting a DNA expert.

Ross was charged almost a year ago with one count of rape, specifically by using force or fear to overcome the victim. The alleged rape happened at a house party in Lawrence in August 2017, when Ross was 19 and the girl was 15.

Based on that, Overstreet had “meticulously crafted” a defense plan to argue that the sex was consensual, he said in his request to continue the trial. That included a request to admit evidence about the girl’s previous sexual conduct.

However, just a couple of weeks ago, prosecutors added an alternative charge: aggravated indecent liberties with a child. Consent is not a factor in that crime. The state only needs to prove the victim was 14 or 15 when the sex occurred and that the defendant acted “intentionally, knowingly, or recklessly,” Walker said in a court filing.

Overstreet called adding that charge at a late date an unfair “catch-22 being thrust upon Mr. Ross.” When the judge allowed the charge to be added anyway, he filed the “life begins at fertilization” motion.

Stacey Donovan, the chief public defender in Shawnee County District Court and an adjunct professor at the University of Kansas School of Law, said she’s had sex crime defendants ask her to try the “conception” argument. But, she said, she hasn’t done it.

“I do not think it’s a thing,” she said, citing the Court of Appeals opinion.

KU law professor Corey Rayburn Yung, who specializes in criminal law and sex crimes, said the argument was new to him.

He said he didn’t see it being successful, emphasizing that, separate from abortion law, the definitions for age of consent are linked to an actual birth date.

At a preliminary hearing this spring, the girl testified that Ross, an acquaintance, drove her and a friend to the party. She said she’d been drinking alcohol and dancing before going to an upstairs bedroom, where she either fell asleep or “blacked out.”

When she woke, she said, the room was dark, the door was closed and Ross was pulling off her clothes, pinning her down and raping her. She said she screamed and told him to stop but that he “pushed my head into the bed so that nobody could hear me.”

Attorney Sarah Swain handled Ross’ preliminary hearing. Overstreet, who did not reply to a message seeking comment Tuesday, is employed by Swain’s law firm.

Swain, in her website profile, describes herself as “a pitbull” who assures clients she will “explore every avenue and resource available to have their case dismissed or charges dropped.”

A hearing to set Ross’ new trial date is scheduled for Jan. 3. He remains free on $20,000 bond.