State v. Ford: Tethering “Force” to the Sexual Act and Upholding Kansas’s Rape Statute Against Vagueness

Court: Supreme Court of Kansas

Date: June 27, 2025

Docket No.: 124,236

Introduction

This commentary analyzes the Kansas Supreme Court’s per curiam decision in State v. Ford, affirming a rape conviction under K.S.A. 21-5503(a)(1)(A) and addressing four central issues: (1) whether the trial court erred by failing to give a “modified Bunyard” instruction in a case where the defendant claimed initial consent but asserted post-penetration withdrawal; (2) whether the prosecutor’s closing argument contained reversible error; (3) whether K.S.A. 21-5503 is unconstitutionally vague; and (4) whether cumulative error warranted reversal.

While the Court assumed arguendo that a modified Bunyard instruction could be appropriate post-2011 and that the trial judge erred in not giving it, the omission was not clearly erroneous. The Court also held that the prosecutor misstated the law by extending the “force” element beyond the sexual act, but found the error harmless beyond a reasonable doubt. Finally, the Court rejected a constitutional vagueness challenge to K.S.A. 21-5503, holding the statute provides both fair notice and adequate standards to prevent arbitrary enforcement. Two concurrences comment on procedural and doctrinal dimensions of vagueness review and standing.

Summary of the Opinion

Modified Bunyard instruction: The Court held the defendant did not preserve a request for a modified Bunyard instruction; review therefore proceeded under the “clearly erroneous” standard (K.S.A. 22-3414[3]). Assuming without deciding that omission of the instruction was error, the Court was not firmly convinced the verdict would have been different; no reversal.
Prosecutorial error: The prosecutor misstated the law by arguing that “force” began outside the context of the sexual act (e.g., travel against the victim’s wishes, repeated calls, pressuring for sex). That was legal error but harmless beyond a reasonable doubt in light of the whole record. Other challenged comments—regarding facts and presumption of innocence—were not error.
Vagueness challenge: K.S.A. 21-5503 is not void for vagueness under either prong. The statute gives fair notice, and the “force or fear” element—though it evaluates the victim’s subjective experience—sets a definable, evidence-based standard that guards against arbitrary enforcement.
Cumulative error: Not applicable. The only error was a single harmless misstatement of law; the unpreserved, not-clearly-erroneous instruction issue cannot be aggregated under K.S.A. 22-3414(3).
State’s conditional cross-petition: The Court dismissed the State’s cross-petition as improvidently granted because it assumed legal appropriateness of a modified Bunyard instruction for its clear-error analysis without deciding that question for post-2011 cases.

Factual Background

The case turned on whether sexual intercourse was consensual. M.L. testified that in the early morning of December 2, 2017—after she reluctantly let the defendant, Ford, into her Wichita apartment—she awoke to Ford on top of her, pinning her and forcing intercourse despite her refusals and resistance. Forensic evidence documented a large laceration on her labia minora and DNA consistent with Ford’s saliva on her breasts. Ford acknowledged traveling to Wichita but testified the encounter was consensual, that M.L. helped remove her clothes, initially consented to sex, and then abruptly withdrew consent—at which point he says he immediately stopped. The jury requested a definition of rape and a readback of testimony, ultimately convicting Ford of rape. He received a 155-month sentence and lifetime postrelease supervision.

Issues Presented

Did the trial court commit reversible error by failing to give a modified Bunyard instruction?
Did the prosecutor commit reversible error in closing argument by misstating law or facts or diluting the burden of proof?
Is K.S.A. 21-5503(a)(1)(A) and (e) unconstitutionally vague under the federal void-for-vagueness doctrine?
Does cumulative error warrant reversal?

Detailed Analysis

I. Modified Bunyard Instruction

The doctrine. In State v. Bunyard, 281 Kan. 392 (2006), the Court recognized that rape can occur where initial penetration is consensual but consent is withdrawn and intercourse continues under “force or fear.” State v. Flynn, 299 Kan. 1052 (2014), corrected Bunyard by eliminating any “reasonable time” to stop language and required a modified Bunyard instruction for pre–July 1, 2011 offenses when evidence supports post-penetration withdrawal and continued intercourse under force or fear.

A. Preservation and Standard of Review

The defendant did not submit a modified Bunyard instruction and his objections to the elements instruction addressed different issues: (1) an “it is not a defense” clause he argued was not statutory (it is; K.S.A. 21-5503[e]); and (2) an assertion that the “force or fear” element requires force beyond penetration. He cited Bunyard/Flynn only to support the latter proposition, not to request the distinct modified Bunyard instruction. Accordingly, the Court held a modified Bunyard request was not preserved, triggering K.S.A. 22-3414(3)’s “clearly erroneous” standard. See State v. Robinson, 293 Kan. 1002 (2012); State v. Holley, 313 Kan. 249 (2021).

B. Legal and Factual Appropriateness

The State argued that the 2011 amendment (K.S.A. 21-5503[e]) rendered modified Bunyard legally inappropriate post-2011; the defense argued otherwise. The Court, like the Court of Appeals, assumed without deciding that the instruction was both legally and factually appropriate on this record, and thus did not decide its post-2011 availability. The State’s conditional cross-petition (to declare such an instruction categorically inappropriate post-2011) was dismissed as improvidently granted.

C. Clear Error Analysis

Under State v. Williams, 295 Kan. 506 (2012), State v. Berkstresser, 316 Kan. 597 (2022), and progeny, the question is whether the Court is firmly convinced the jury would have reached a different verdict had the error not occurred. The Court emphasized that—if the jury believed Ford’s account (initial consent, immediate cessation upon withdrawal)—the existing elements instruction would have compelled acquittal. The jury’s guilty verdict necessarily rejected Ford’s initial-consent narrative. Because the jury had to find lack of consent during the intercourse, the Court was not firmly convinced a modified Bunyard instruction would have changed the outcome. No clear error.

D. Commentary

The Court reaffirms that unrequested instruction claims face a high bar on appeal. Even where an instruction might be advisable, defendants must show a likelihood of a different result.
Significant open question: the decision deliberately sidesteps whether a modified Bunyard instruction is legally appropriate post-2011 in “force or fear” cases. Trial courts should continue to analyze whether the evidentiary record actually raises post-penetration withdrawal and continuing intercourse under force or fear—and, if so, consider delivering a modified Bunyard instruction, recognizing the current uncertainty.

II. Prosecutorial Error

A. Misstatement of Law: “Force” Must Be Tethered to the Sexual Act

The prosecutor argued that Ford’s “force” began before the sexual act—citing his decision to drive to Wichita against M.L.’s wishes, repeated calls, and persisting in asking for sex. The Court held those comments misstated the law by extending the statutory “force” element to conduct occurring outside the context of the sexual act. Rape under K.S.A. 21-5503(a)(1)(A) requires nonconsensual sexual intercourse when the victim is overcome by force or fear. Although “force” is a flexible concept not limited to beatings or overt restraint (see State v. Borthwick, 255 Kan. 899 [1994]; State v. Chaney, 269 Kan. 10 [2000]; State v. Tully, 293 Kan. 176 [2011]), the Court clarified it must be linked to circumstances facilitating the act of intercourse itself, not antecedent pressure unmoored from the sexual act. This is a significant doctrinal refinement for trial advocacy.

B. Other Challenged Comments

“Condom rule.” The prosecutor argued Ford knew he lacked consent because he knew M.L. would not have sex without a condom, yet he admitted to proceeding without one. The Court found this a permissible inference from Ford’s testimony.
Who removed clothing. The State’s rebuttal—stating Ford “has her clothes removed, pulls her pants down”—was consistent with Ford’s own testimony that he helped remove M.L.’s leggings and with M.L.’s account; no misstatement.
Presumption of innocence. Unlike State v. Decker, 288 Kan. 306 (2009), the prosecutor did not tell jurors the presumption had ended; she clarified that while Ford enjoyed the presumption of innocence, he was not presumed credible. The jury was properly instructed on the presumption and burden of proof; no dilution occurred.

C. Harmlessness

Applying constitutional harmless error review (State v. Sherman, 305 Kan. 88 [2016]; State v. Ward, 292 Kan. 541 [2011]), the Court found beyond a reasonable doubt that the “force” misstatement did not contribute to the verdict. The comments were brief; the State’s main thrust on “force” emphasized physical restraint and acts facilitating intercourse (pinning arms, turning M.L.’s face, removing clothing, restricting movement). No reasonable possibility the error affected the outcome.

D. Commentary

New practical boundary for closing argument: Prosecutors should avoid characterizing pre-encounter travel, repeated contacts, or generalized pressure as “force” satisfying the statute. The focus must be on force or fear facilitating the sexual act.
Defense counsel should object contemporaneously to preserve robust appellate review; absence of objection can weigh in the prejudice analysis.

III. Vagueness Challenge to K.S.A. 21-5503

Ford asserted the statute is void for vagueness because it allegedly fails to: (1) give fair notice in post-penetration withdrawal scenarios, and (2) provide an objective standard for “force or fear,” inviting arbitrary enforcement.

A. Legal Framework

Under the federal void-for-vagueness test, a statute is unconstitutional if it fails to give persons of ordinary intelligence fair notice of what is prohibited or if it lacks explicit standards to prevent arbitrary enforcement. See City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 (2013). The Court recognized the defendant’s standing to raise both prongs, citing State v. Stubbs, 320 Kan. __ (2025).

B. Fair Notice (As Applied)

The record did not actually present a classic “post-penetration withdrawal and continued intercourse” scenario: Ford testified the sex was consensual and stopped immediately upon M.L.’s objection; M.L. testified there was no consent at any time. Either way, the facts fell squarely within the statutory terms: “knowingly engaging in sexual intercourse with a victim who does not consent … when the victim is overcome by force or fear” (K.S.A. 21-5503[a][1][A]). The statute gave fair warning.

C. Arbitrary Enforcement (Facial)

Ford argued that the “force or fear” element is too subjective and invites arbitrary enforcement absent an objective reasonableness standard (as some other jurisdictions use). The Court rejected that contention. Kansas law has long treated “force or fear” as a fact question, capable of proof with evidence, and requiring proof beyond a reasonable doubt. That the victim’s experience is subjectively evaluated does not render the statute indeterminate like the prohibitions in Morales or Coates. The statute therefore provides adequate standards to channel police, prosecutorial, and jury discretion.

D. Concurrences

Biles, J., concurring in part and dissenting in part: Agreed with the outcome but disagreed with the majority’s standing analysis, cross‑referencing his writing in Stubbs.
Standridge, J., concurring: Agreed with the judgment but criticized the majority’s mixed as‑applied/facial approach. She would apply as‑applied review to both prongs of vagueness absent special circumstances, invoking Kansas and federal precedents that disfavor facial challenges.

E. Commentary

The Court fortifies the validity of K.S.A. 21-5503 against vagueness attacks, including challenges premised on the subjectivity inherent in the “force or fear” element.
Practitioners should note the internal debate about scope of review (as-applied vs. facial) and standing; outcomes remain the same here, but the concurrences signal an evolving conversation in Kansas constitutional adjudication.

IV. Cumulative Error

Because unpreserved instruction issues that are not clearly erroneous cannot be included in cumulative error analysis (State v. Waldschmidt, 318 Kan. 633 [2024]), and only a single harmless error occurred (the prosecutor’s “force” misstatement), the doctrine did not apply. See State v. Gallegos, 313 Kan. 262 (2021).

Precedents Cited and Their Influence

State v. Bunyard, 281 Kan. 392 (2006) and State v. Flynn, 299 Kan. 1052 (2014): Establish and refine the post‑penetration withdrawal framework; Flynn eliminates any “reasonable time” to stop and prescribes the “modified Bunyard” instruction for pre‑2011 cases. Ford assumes without deciding post‑2011 applicability.
State v. Berkstresser, 316 Kan. 597 (2022); State v. Williams, 295 Kan. 506 (2012); State v. Stafford, 223 Kan. 62 (1977): Define the “clearly erroneous” standard—reversal only if firmly convinced the verdict would have been different. Ford reaffirms continuity rather than change.
State v. Sherman, 305 Kan. 88 (2016); State v. Ward, 292 Kan. 541 (2011): Set the two-step prosecutorial error framework and constitutional harmless-error standard (no reasonable possibility of affecting the verdict). Applied to find harmlessness here.
State v. Decker, 288 Kan. 306 (2009): Prosecutor may not declare the presumption of innocence ended; Ford distinguishes Decker and finds no dilution.
State v. Chaney, 269 Kan. 10 (2000); State v. Tully, 293 Kan. 176 (2011); State v. Borthwick, 255 Kan. 899 (1994): Clarify that “force” is flexible and does not require beating or overt restraint. Ford adds an important tether: the “force” must relate to facilitating the sexual act, not merely antecedent conduct.
City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 (2013); Chicago v. Morales, 527 U.S. 41 (1999); Coates v. City of Cincinnati, 402 U.S. 611 (1971): Frame the void-for-vagueness doctrine. Ford distinguishes Kansas’s rape statute from indeterminate prohibitions and upholds it.
State v. Waldschmidt, 318 Kan. 633 (2024); State v. Gallegos, 313 Kan. 262 (2021); State v. Alfaro-Valleda, 314 Kan. 526 (2022): Govern cumulative error and unpreserved instruction aggregation; applied to foreclose cumulative error here.
State v. Stubbs, 320 Kan. __ (2025) and State v. Ninh, 320 Kan. __ (2025): Provide companion guidance on standing and scope for vagueness analysis; inform majority’s approach and elicit concurring critiques.

Impact and Practical Implications

Closing Argument Boundaries: Prosecutors must not frame pre-encounter travel, calls, or general persistence as the statutory “force” that overcomes a victim for purposes of rape. Arguments should concentrate on force or fear contemporaneous with and facilitating the sexual act (e.g., restraint, positioning, manipulation of the victim’s body, threats that overcome will at the moment of intercourse).
Jury Instructions Strategy: Defense counsel seeking a modified Bunyard instruction must distinctly request it and tie it to the evidence (initial consent; communicated withdrawal; continuation under force or fear). Absent a clear request, appellate review becomes “clearly erroneous,” which is difficult to satisfy.
Open Question—Post‑2011 Applicability: Whether a modified Bunyard instruction is “legally appropriate” in force-or-fear cases arising after the 2011 legislative amendments remains undecided. Trial courts should continue to analyze the issue case-by-case and create a record.
Constitutional Stability of K.S.A. 21-5503: The statute survives a two-pronged vagueness challenge. Future attacks premised on the subjective nature of “force or fear” will face a high bar in Kansas.
Preservation Matters: The Court’s reaffirmation of Berkstresser/Williams underscores that unpreserved instruction claims usually fail absent a strong showing of a different verdict; practitioners should object and propose instructions in writing.
Appellate Framing of Vagueness: Watch the emerging dialogue over as-applied versus facial review and standing (see concurrences and Stubbs/Ninh). The majority’s mixed approach may shape how future constitutional challenges are briefed and decided.

Complex Concepts Simplified

Modified Bunyard Instruction: A supplemental jury instruction used when evidence shows sex began with consent but the victim later withdrew consent and intercourse continued under “force or fear.” Per Flynn, it clarifies that rape can occur even if initial penetration was consensual, provided withdrawal is communicated and intercourse continues under force or fear.
“Clearly Erroneous” Review (Unrequested Instructions): If an instruction was neither requested nor its omission objected to, an appellate court will reverse only if firmly convinced the jury would have reached a different verdict had the instruction been given.
Prosecutorial Error—Two Steps: (1) Error: Did the prosecutor’s comments exceed the wide latitude allowed (e.g., by misstating law, misstating facts)? (2) Prejudice: Is there no reasonable possibility the error affected the verdict, considering the whole record?
Void for Vagueness (Two Prongs): A criminal statute is void if it fails to provide fair notice of prohibited conduct or invites arbitrary enforcement due to indeterminate standards. Kansas law allows subjective elements if the statute describes factual circumstances that can be proven and cabined by the reasonable-doubt burden.
As-Applied vs. Facial Challenges: As-applied attacks argue the statute is unconstitutional in the specific facts at hand. Facial attacks assert the statute is invalid in most, or all, applications. Kansas generally disfavors facial challenges outside special contexts; the concurrences urge consistency in applying as-applied review for vagueness.

Conclusion

State v. Ford provides two pivotal clarifications for Kansas criminal practice. First, the “force or fear” element in K.S.A. 21-5503 must be anchored to the sexual act; prosecutorial efforts to expand “force” to pre-act conduct misstate the law—though such misstatements may be harmless in context. Second, the statute withstands void-for-vagueness scrutiny, even with a subjective “force or fear” standard, because it defines concrete, provable circumstances and requires proof beyond a reasonable doubt.

On jury instructions, Ford underscores the importance of preserving requests for a modified Bunyard instruction where the record genuinely presents initial consent, communicated withdrawal, and continued intercourse under force or fear. The Court leaves unresolved whether the modified Bunyard instruction is legally appropriate for post‑2011 cases in light of K.S.A. 21-5503(e), an issue ripe for future resolution. Practitioners should tailor trial strategies accordingly: make clear record requests, keep closing arguments tethered to the sexual act when discussing “force,” and expect the rape statute’s constitutionality to remain secure absent materially different arguments or facts.