Mandatory Romeo-and-Juliet Screening and Narrow “Sexually Explicit Conduct” Definition for Under‑19 Sexting Cases: State v. Grant (Kan. 2025)

Introduction

In State v. Grant, the Supreme Court of Kansas issued a significant opinion reshaping how prosecutors, trial courts, and defense counsel must approach cases involving teenage sexting and the child-exploitation statute. The case involved Robert Cameron Grant, an 18-year-old who pled guilty to two counts of attempted sexual exploitation of a child based on nude images and videos of his then 16-year-old girlfriend found on his phones. After sentencing, Grant moved to withdraw his plea, alleging ineffective assistance because counsel failed to advise him about the “Romeo and Juliet” statutes—K.S.A. 21-5610 and 21-5611—that provide specific, age-based protections and lesser culpability for under‑19 offenders in sexting contexts.

The district court summarily denied his motion; a divided Court of Appeals affirmed. The Kansas Supreme Court reversed both, holding that the district court should have conducted an evidentiary hearing because Grant’s motion raised substantial issues of fact and law. In doing so, the Court announced—and clarified—several important rules:

Before applying the felony child-exploitation statute (K.S.A. 21‑5510) to an under‑19 defendant, courts must first determine whether the conduct falls within the “Romeo and Juliet” statutes (K.S.A. 21‑5610, 21‑5611). If it does, the State may only charge under those statutes.
For purposes of the Romeo and Juliet statutes, “sexually explicit conduct” is defined only by K.S.A. 21-5611(g)(1)—a narrow definition that does not include mere nudity.
“Sexually explicit conduct” and “obscenity” are distinct, independent exceptions to Romeo-and-Juliet coverage; courts must not conflate them.
Obscenity under K.S.A. 21-6401(f)(1) requires all three statutory prongs (prurient appeal, patent offensiveness, lack of serious value) and presents fact questions for a trier of fact.
In ineffective-assistance claims arising from plea negotiations, courts must assess counsel’s performance in light of all original charges—not just the counts to which the defendant ultimately pled.
Appellate courts may not make new factual findings (e.g., about obscenity or prurient appeal) in the absence of a record; those determinations require an evidentiary hearing.

This commentary explains the decision, its doctrinal underpinnings, and its implications for charging decisions, plea negotiations, and the adjudication of teen sexting cases in Kansas.

Summary of the Opinion

The Kansas Supreme Court reversed the summary denial of Grant’s postsentence motion to withdraw his plea and remanded for an evidentiary hearing. The Court held:

K.S.A. 21‑5510 explicitly incorporates the Romeo and Juliet statutes; therefore, when the defendant is under 19, courts must first screen for the applicability of K.S.A. 21‑5610 and 21‑5611 before permitting charges under K.S.A. 21‑5510.
“Sexually explicit conduct” for purposes of K.S.A. 21‑5610 and 21‑5611 is defined exclusively in K.S.A. 21‑5611(g)(1) and, unlike the broader definition in K.S.A. 21‑5510(d)(1), does not include mere nudity.
The district court erred by (a) applying the wrong definition of “sexually explicit conduct” and (b) evaluating counsel’s performance only against the counts of conviction, not the full set of original charges at the time of plea negotiations.
The Court of Appeals erred by conflating “sexually explicit conduct” with “obscenity” and by effectively making factual findings (e.g., about “prurient interest”) without a developed evidentiary record.
Because the record suggests the Romeo and Juliet statutes might reduce or eliminate felony exposure for some or all conduct, and because whether the statutory exceptions (sexually explicit conduct or obscenity) apply turns on fact questions, Grant is entitled to an evidentiary hearing on his plea-withdrawal motion.

Analysis

1) Precedents and Authorities Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985): Provided the ineffective-assistance framework. The Court reiterated that in plea contexts, deficiency consists of objectively unreasonable advice/investigation, and prejudice means a reasonable probability the defendant would have gone to trial but for counsel’s errors.
State v. Edgar, 281 Kan. 30 (2006), State v. Kelly, 298 Kan. 965 (2014), and State v. Espinoza, 319 Kan. 653 (2024): Set forth the manifest-injustice standard and the Edgar factors for postsentence plea withdrawal. The Court relied on these to explain the need for an evidentiary hearing when substantial factual/legal issues are raised.
State v. Wilson, 308 Kan. 516 (2018), State v. Fritz, 299 Kan. 153 (2014): Established unlimited review over summary denials and reinforced the requirement to hold hearings when motions raise substantial issues.
State v. Dinkel, 314 Kan. 146 (2021); Chamberlain v. State, 236 Kan. 650 (1985); State v. White, 289 Kan. 279 (2009); Morrow v. State, 219 Kan. 442 (1976): Emphasized counsel’s duty to investigate applicable defenses, know the law, and advise on the range of options and consequences during plea negotiations. These authorities undergird the Court’s directive to evaluate counsel’s performance against all original charges, not merely the counts of conviction.
In re E.A., 319 Kan. 748 (2024), and State v. Jackson, 255 Kan. 455 (1994): Confirmed statutory-interpretation standards and the hearing threshold (“substantial issues of fact or law”).
State v. Bee, 288 Kan. 733 (2009), and State v. Manbeck, 277 Kan. 224 (2004): Guided the Court’s grammatical analysis of “or” (disjunctive) and “and” (conjunctive), critical to keeping the Romeo-and-Juliet exceptions (sexually explicit conduct vs. obscenity) separate and to requiring all three elements of obscenity.
In re Estate of Butler, 301 Kan. 385 (2015): Reinforced plain-meaning statutory interpretation, applied to read K.S.A. 21‑6401(f)(1) conjunctively.
Miller v. California, 413 U.S. 15 (1973); State v. Hughes, 246 Kan. 607 (1990); State v. Motion Picture Entitled “The Bet”, 219 Kan. 64 (1976); State v. Starr Enterprises, Inc., 226 Kan. 288 (1979): Provided the constitutional and Kansas framework for obscenity, emphasizing the three‑part test and the role of the fact‑finder.
Sall v. T’s, Inc., 281 Kan. 1355 (2006): Cautioned that appellate courts are not fact-finders, a principle the Court applied in faulting the Court of Appeals for making prurient-interest findings without a record.
State v. Qualls, No. 126,205, 2024 WL 4182572 (Kan. App. 2024) (unpublished): Cited by the Court regarding the age reference in K.S.A. 21‑5510(a)(2) (the age of the child as depicted), informing the Romeo-and-Juliet screening for possession counts.
Scalia & Garner, Reading Law (2012), and secondary authorities: Supported the Court’s textual approach to conjunctions/disjunctions and the fact-finding nature of obscenity.

2) Legal Reasoning and Statutory Architecture

a) The gating function: K.S.A. 21‑5510 incorporates K.S.A. 21‑5610 and 21‑5611

The opening clause of K.S.A. 21‑5510—“Except as provided in K.S.A. 21‑5610 and 21‑5611”—does real work. It mandates a threshold inquiry: when the accused is under 19, courts must first determine whether the conduct falls within K.S.A. 21‑5610 (possession by an under‑19 offender of images of a child in a state of nudity) or K.S.A. 21‑5611 (transmission by an under‑19 offender, including requests to transmit). If so, charging must proceed under those Romeo-and-Juliet statutes, not the felony child-exploitation statute. This rule is especially vital in teen sexting cases, where age and content can shift conduct from felony to misdemeanor—or even to lawful conduct (e.g., under K.S.A. 21‑5610(f) for possession of nude images of a 16‑ or 17‑year‑old by an under‑19 offender).

b) The right definition: “Sexually explicit conduct” under Romeo-and-Juliet statutes is narrow

The district court applied the wrong definition. The Romeo and Juliet statutes define “sexually explicit conduct” exclusively in K.S.A. 21‑5611(g)(1), which covers actual or simulated sexual intercourse or sodomy, masturbation, and sadomasochistic abuse for the purpose of sexual stimulation. That definition is materially narrower than the definition in K.S.A. 21‑5510(d)(1), which—among other things—includes “exhibition in the nude” and “lewd exhibition” of certain anatomy. Because the Romeo-and-Juliet definition governs the exceptions within those statutes, mere nudity is not “sexually explicit conduct” for Romeo-and-Juliet purposes. Treating nudity as “sexually explicit conduct” would nullify the Legislature’s targeted leniency for consensual teen sexting.

c) Keep the exceptions distinct: “Sexually explicit conduct” versus “obscenity”

The Court admonished the Court of Appeals for blending two separate exceptions that can disqualify a defendant from Romeo-and-Juliet coverage: “sexually explicit conduct” (as narrowly defined above) and “obscenity” (as defined in K.S.A. 21‑6401(f)(1)). The Legislature used “or,” making them independent grounds. Courts must evaluate them separately and not rewrite the statutory scheme into a single, blended test.

d) Obscenity is a conjunctive, fact-bound test

Obscenity requires all three elements: (1) prurient appeal; (2) patently offensive depictions of specifically defined sexual conduct; and (3) lack of serious value. This is the Miller framework, codified in Kansas. Whether material meets those elements is a question for the trier of fact on a developed evidentiary record; appellate courts cannot shortcut that process by inferring prurient appeal from sparse descriptions.

e) Ineffective assistance must be assessed across the full pre‑plea landscape

Because Grant’s claim is that counsel failed to identify and advise on Romeo‑and‑Juliet coverage that could have substantially reduced or eliminated felony exposure, the Court required the district court to evaluate counsel’s performance with respect to all original charges (nine counts under K.S.A. 21‑5510(a)(2) and five under K.S.A. 21‑5510(a)(4)) and the legal defenses available at the time of plea bargaining. Limiting the analysis to the counts of conviction (two attempts under K.S.A. 21‑5510(a)(4)) distorted the Strickland inquiry.

f) Application to Grant’s charging posture

Possession counts (K.S.A. 21‑5510(a)(2)): If the images were of a 16‑year‑old and Grant was under 19, K.S.A. 21‑5610(f) may render possession noncriminal. If the depictions involved a 12‑ to 15‑year‑old, K.S.A. 21‑5610(a) may reclassify the conduct as a misdemeanor, not a felony—subject to the separate exceptions for “sexually explicit conduct” and “obscenity,” which require fact-finding.
Promotion counts (K.S.A. 21‑5510(a)(4)): The record was unclear that Grant “promoted” anything (a term broadly defined in K.S.A. 21‑5510(d)(2)). Moreover, K.S.A. 21‑5611 may govern where the relevant conduct is “transmission,” which the statute defines to include a request for a transmission of a visual depiction.
The plea counts (attempted violations of K.S.A. 21‑5510(a)(4) based on requests for videos of bare breasts): Requests to receive images are specifically encompassed within “transmission” under K.S.A. 21‑5611(g)(3). Because the Romeo-and-Juliet definition of “sexually explicit conduct” excludes mere nudity, a request for a nude depiction may fall within K.S.A. 21‑5611 rather than K.S.A. 21‑5510—again subject to the distinct “obscenity” and “sexually explicit conduct” exceptions, which must be proven with facts.

3) Impact and Practical Implications

a) Charging decisions and prosecutorial ethics

Prosecutors must perform a Romeo-and-Juliet screening whenever an under‑19 defendant is alleged to have possessed, transmitted, or requested nude depictions involving minors. If the conduct falls within K.S.A. 21‑5610 or 21‑5611—and neither the “sexually explicit conduct” nor “obscenity” exceptions applies—the State may not charge under K.S.A. 21‑5510. Attempt or “promotion” theories do not bypass the screening requirement.

b) Defense practice and plea negotiations

Defense counsel must investigate Romeo-and-Juliet applicability and advise clients about the full range of legal consequences, including the possibility of misdemeanor disposition or no criminal liability for certain age combinations and content. Failure to do so can be constitutionally deficient and prejudicial, especially where the difference between felony and misdemeanor (or no offense) materially alters a defendant’s decision to plead.

c) Trial court procedure

Trial courts should not summarily deny postsentence plea-withdrawal motions that raise substantial Romeo-and-Juliet issues. Where “sexually explicit conduct” or obscenity exceptions are implicated, the court must hold an evidentiary hearing; those are fact questions. Courts must apply the correct definitions and keep the exceptions separate.

d) Appellate review

Appellate courts must avoid fact-finding on undeveloped records—especially on issues like prurient interest or patent offensiveness. The appropriate course is remand for evidentiary development.

e) Policy and youth-justice implications

Grant restores the Legislature’s calibrated response to teen sexting: it protects youth from the life-altering consequences of felony convictions and sex-offender exposure in consensual, age-proximate settings while preserving the State’s ability to prosecute genuinely harmful or exploitative material (e.g., images depicting sexual acts or material meeting the strict obscenity test).

Complex Concepts Simplified

Romeo-and-Juliet statutes (K.S.A. 21‑5610, 21‑5611): Kansas laws enacted to address teen sexting by under‑19 offenders. They can reduce felony liability to misdemeanors—or eliminate liability entirely in narrow age/content situations—unless a separate exception applies.
“Sexually explicit conduct” for Romeo-and-Juliet purposes (K.S.A. 21‑5611(g)(1)): Limited to actual or simulated sexual intercourse/sodomy, masturbation, or sadomasochistic abuse for sexual stimulation. It does not include mere nudity.
“Nudity” and “state of nudity”: Visual exposure of covered categories like genitals or female breast; Kansas law treats certain bare-breast depictions as “nudity.” Nude images alone are not “sexually explicit conduct” for the Romeo-and-Juliet exception analysis.
“Transmission” (K.S.A. 21‑5611(g)(3)): Any form of communication, including a request to receive a nude image. Thus, asking for a nude photo can fall under K.S.A. 21‑5611.
Obscenity (K.S.A. 21‑6401(f)(1)): A conjunctive, three-part test—(1) appeals to the prurient interest, (2) patently offensive depictions of specified sexual conduct, and (3) lack of serious value. All three must be met; this is a fact question for a judge/jury based on evidence.
Ineffective assistance in plea negotiations: Counsel must know the law, investigate applicable defenses, and advise the defendant about realistic options and penalties across all original charges. Prejudice means a reasonable probability the defendant would have gone to trial absent the errors.

Unresolved Questions and Roadmap on Remand

The Supreme Court did not decide whether the Romeo-and-Juliet statutes ultimately apply; it required a hearing to resolve fact-dependent issues:

Exactly what do the images and videos depict? Do any show sexual acts or masturbation (triggering the “sexually explicit conduct” exception) or meet the obscenity test?
What were the precise ages of the depicted person at the time of depiction and of Grant at the time of possession/request?
Did Grant “promote” any content within the meaning of K.S.A. 21‑5510(d)(2), or are the facts more accurately characterized as “transmission” or “request” under K.S.A. 21‑5611?
What did defense counsel know about the Romeo-and-Juliet framework, and what advice was given? Would Grant have rejected the plea and gone to trial with proper advice?
Are any images “obscene” under K.S.A. 21‑6401(f)(1)? This requires fact finding on prurient appeal, patent offensiveness of specifically defined conduct, and lack of serious value.

Conclusion

State v. Grant is a landmark Kansas decision in the teen-sexting arena. It establishes that the Romeo-and-Juliet statutes are not optional or peripheral—when the accused is under 19, they are a mandatory first screen that can dramatically alter charging and plea landscapes. The Court clarified that “sexually explicit conduct” for Romeo-and-Juliet purposes is narrowly defined and excludes mere nudity, and it insisted on treating “sexually explicit conduct” and “obscenity” as separate, independent exceptions, each carrying its own elements and evidentiary requirements.

Equally important, the opinion fortifies basic plea-bargaining norms: ineffective-assistance review must consider counsel’s advice and investigation across all original charges at the time of the plea decision, not just the counts of conviction. Finally, Grant reaffirms that obscenity determinations and related content questions are for fact-finders on a developed record, not for appellate courts to decide in the abstract.

Taken together, these holdings promise to reorient charging practices and defense counseling in Kansas sexting cases involving under‑19 defendants, bring appellate and trial-court roles back into alignment, and effectuate the Legislature’s measured approach to adolescent conduct while preserving robust tools to prosecute genuinely exploitative or harmful material.