State v. Ninh: “Overcome by Force or Fear” Is a Single Unified Means; Subjective Fear Suffices; and “Grooming-as-Force” Requires Evidentiary Support

Introduction

In State v. Ninh, No. 122,782 (Kan. June 27, 2025), the Kansas Supreme Court affirmed multiple convictions arising from the sexual abuse of a teenage stepdaughter, including three counts of rape and two counts of aggravated criminal sodomy, and rejected several constitutional and trial-error challenges. The decision clarifies core elements of Kansas’ sex offense framework, notably that “when the victim is overcome by force or fear” constitutes a single unified means of committing rape or aggravated criminal sodomy, with the actus reus being “to overcome” and “force or fear” operating as descriptive factual circumstances. The Court also held that the statutes are not unconstitutionally vague, notwithstanding the subjective nature of fear and statutory provisions that bar defendants from relying on their ignorance of the victim’s nonconsent or being “overcome.”

The Court further refined Kansas law on prosecutorial argument: while it found error in a “grooming-as-force” closing argument because it cited facts not in evidence, it expressly disapproved the Court of Appeals’ broader conclusion that “grooming” can never constitute “force” as a matter of law. Instead, the Court left open the possibility that, with suitable evidentiary foundations (including expert testimony), grooming may support the “overcome by force or fear” element.

Key issues included:

Sufficiency of the evidence that the victim was “overcome by force or fear.”
Facial and as-applied vagueness challenges to K.S.A. 21-5503(a)(1)(A), (e) (rape) and K.S.A. 21-5504(b)(3), (f) (aggravated criminal sodomy).
Jury unanimity in a multiple acts case.
Prosecutorial error, including whether characterizing “grooming” as force is a misstatement of law.

Summary of the Opinion

The Kansas Supreme Court affirmed the Court of Appeals and the district court:

Unified Means: The phrase “when the victim is overcome by force or fear” defines a single means of committing rape/aggravated sodomy; the actus reus is “to overcome,” while “force or fear” are factual descriptors that may prove the victim was overcome.
Vagueness: The rape and aggravated criminal sodomy statutes are not unconstitutionally vague. Ordinary meaning gives fair notice of prohibited conduct; the statutes supply definite standards capable of fair application and do not invite arbitrary enforcement, even with statutory language barring an ignorance-based defense.
Sufficiency: The evidence supported that the victim was overcome by fear. The victim’s subjective fear—assessed by the jury in context—sustained the convictions.
Unanimity: The State presented a multiple acts case, but a proper multiple acts instruction cured any unanimity concern; no error.
Prosecutorial Error: It was error to argue in closing that “grooming” was the defendant’s “form of force” because the statement referenced facts not in evidence. The error was harmless beyond a reasonable doubt given the record’s strength on “fear.” Importantly, the Court disapproved the Court of Appeals’ broader legal pronouncement and held that, in an appropriate case with proper evidentiary support (including expert testimony), grooming could be evidence of force or fear.

Analysis

1) Precedents Cited and Their Influence

State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014): Central to the Court’s structural interpretation of the rape statute. The Court reaffirmed that statutory subsections delineate alternative means of committing a broad offense, while modifying clauses within a subsection describe factual circumstances proving the element. Thus, “overcome by force or fear” is a single unified means; the actus reus is “to overcome.”
State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), and State v. Brown, 303 Kan. 995, 368 P.3d 1101 (2016): Brown (2012) informed the alternative means framework; Brown (2016) reiterated the State’s burden to prove every element beyond a reasonable doubt and was cited to rebut the claim that “not a defense” provisions loosen the State’s proof obligations.
State v. Pepper, 317 Kan. 770, 539 P.3d 203 (2023): Applied the same structural logic to K.S.A. 21-5504 (aggravated criminal sodomy), aligning sodomy’s “overcome by force or fear” language with rape’s.
State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012), overruled on other grounds by State v. King, 297 Kan. 955, 305 P.3d 641 (2013): Clarified alternative means analysis; the Court relied on its framework to distinguish between separate means and descriptive facts.
State v. Borthwick, 255 Kan. 899, 880 P.2d 1261 (1994): Pivotal on the subjective nature of fear in rape cases. The decision reaffirms that what overcomes one person may not another, and that the jury assesses reasonableness within credibility determinations.
State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983): Earlier approval of force/fear language against vagueness attack; the Court’s current holding is consistent with Cantrell.
State v. Harris, 311 Kan. 816, 467 P.3d 504 (2020): Articulated the arbitrary enforcement prong of the vagueness test—laws must not delegate ad hoc policy-making to prosecutors or courts. The Court invoked Harris to explain why the “not a defense” provisions do not invite arbitrariness.
State v. Cottrell, 310 Kan. 150, 445 P.3d 1132 (2019); State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007); State v. Santos-Vega, 299 Kan. 11, 321 P.3d 1 (2014): Guided the multiple acts/unanimity analysis; a proper multiple acts instruction safeguards unanimity.
State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011); State v. Blansett, 309 Kan. 401, 435 P.3d 1136 (2019); Chapman v. California, 386 U.S. 18 (1967): Framed prosecutorial error review and constitutional harmless error. The Court’s analysis of “grooming-as-force” applies these standards.
State v. Akins, 298 Kan. 592, 315 P.3d 868 (2014): Recognized “grooming” as a psychological concept typically requiring expert explication. Akins informed the Court’s caution that, absent evidentiary foundation and expert linkage, arguing grooming as “force” is improper.
State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016): Allowed prosecutors to use labels like “murderer” when directly tethered to evidence; analogized to upholding the prosecutor’s singular reference to “rapist” in context of arguing the evidence.
State v. Stubbs, 320 Kan. ___ (No. 125,003, decided the same day): The concurrences debate Stubbs’ standing and the bifurcation of vagueness into fair-notice (due process) and arbitrary-enforcement (separation of powers) components. Ninh reflects and applies that framework, though concurring justices flag concerns.

2) Legal Reasoning

a) Elements: “Overcome by Force or Fear” Is a Single Unified Means

Interpreting K.S.A. 21-5503(a)(1)(A) (rape) and 21-5504(b)(3)(A) (aggravated criminal sodomy), the Court, adhering to the statute’s text and structure, reaffirmed that:

The material actus reus is that the victim was “overcome.”
“Force or fear” are not alternative means inside the subsection; they describe factual circumstances that may prove “overcome.”
Consequently, a conviction is valid where the jury is instructed it must find the victim was “overcome by force or fear,” and the evidence shows either force or fear.

The Court declined to graft new judicial definitions onto “force,” “fear,” or “overcome,” emphasizing ordinary meaning and prior cases. This conserves the jury’s role in weighing credibility and context.

b) Sufficiency: Subjective Fear Sustained the Verdicts

Viewing the record most favorably to the State, the Court found ample evidence that the victim was overcome by fear during the charged acts (ages 14–16). The victim described:

Being “forced” in the sense of feeling powerless and afraid of familial consequences and personal harm to herself and siblings.
Resignation that resistance would be futile or escalate matters.
Using coping mechanisms (e.g., hiding under covers; staying on late-night calls) to try to avert abuse.

Citing Borthwick, the Court stressed fear’s subjective character and that juries evaluate whether the testimony is credible and sufficient, not appellate courts.

c) Vagueness: Fair Notice and Arbitrary Enforcement

Applying the two-prong vagueness test:

Fair Notice: Words of common meaning suffice. “Overcome” carries ordinary definitions (to get the better of, conquer, subdue). “Fear,” while subjective, has long been accepted in Kansas jurisprudence as a workable basis for liability in this context. Prior decisions (Cantrell, Borthwick, Brooks) support this reading. The statutes give ordinary persons fair warning.
Arbitrary Enforcement: The “not a defense” clauses in K.S.A. 21-5503(e) and 21-5504(f) do not shift the burden or allow prosecution of mere sex acts. The State must still prove nonconsent and the victim being “overcome.” These definite elements guard against ad hoc enforcement. Consequently, there is no impermissible delegation of legislative power.

The Court thus rejected both facial and as-applied vagueness claims, concluding the statutes are neither indeterminate nor prone to arbitrary application.

d) Unanimity in a Multiple Acts Case

Although the State presented multiple acts for several counts, the prosecutor organized the proof chronologically and, critically, the district court issued a proper multiple acts unanimity instruction directing jurors to agree on the same underlying act for each count. Kansas law presumes jurors follow instructions; such an instruction cures unanimity concerns. No error occurred.

e) Prosecutorial Error: “Grooming-as-Force,” “Some Rapists,” and “Rapist” Label

“Grooming-as-Force”: The prosecutor’s closing argument stated the defendant’s “form of force was grooming.” Because the only grooming-related testimony was a brief acknowledgement (without expert explication or linkage) that grooming exists and can be a type of force in some cases, the argument strayed into facts not in evidence and exceeded permissible inference. Error found, but harmless beyond a reasonable doubt given strong proof of “fear.” Importantly, the Court disapproved the Court of Appeals’ broader legal conclusion and held that, in a properly developed record (often including expert testimony), grooming could help establish that a victim was “overcome by force or fear.”
“Some Rapists”: General statements that “some rapists are sadists” or “some use alcohol” were, at best, marginal and untethered to the case. Assuming error, it was harmless: the comments were isolated and not aimed to inflame, and they did not pertain to the defendant’s conduct.
Calling Defendant a “Rapist”: A single reference in the context of summarizing DNA evidence was permissible argument tying the label to the evidence (analogous to Scott’s allowance of “murderer/killer” when arguing the proof). No error.

3) Impact and Practical Implications

a) Substantive Criminal Law

Unified Means Clarified: Litigants should treat “overcome by force or fear” as a single means. Prosecutors need not present proof of both force and fear; either can suffice to show the victim was “overcome.” Defense counsel should tailor arguments accordingly and avoid alternative-means unanimity claims within subsection (A).
Subjective Fear Endorsed: Fear is a subjective state; a victim’s credible testimony, considered with contextual facts (relative power, vulnerability, relationship dynamics), may sustain the element. Trial strategies will likely continue to focus on credibility, context, and corroboration rather than insisting on objective thresholds.
Grooming as Potential Evidence of “Force or Fear”: The Court preserved the possibility that grooming may satisfy “overcome by force or fear” when a proper evidentiary foundation is laid. Practitioners should:
- Use qualified experts to explain grooming and its psychological effects on agency, resistance, and submission.
- Lay testimony linking grooming dynamics to the victim’s inability to resist.
- Draft jury instructions carefully to avoid conflating “grooming” with an automatic substitute for “force” absent proof of “overcome.”

b) Constitutional Litigation

Vagueness Doctrine in Kansas: Ninh (and the contemporaneous decision in Stubbs) signals a refined framework: fair notice tied to due process, and arbitrary enforcement linked to separation of powers. Although the majority applies that structure, concurrences by Justices Biles and Standridge caution against expansive facial review and urge restraint and as-applied analysis. Expect continued doctrinal development in future cases.
“Not a Defense” Clauses Stand: The Court’s endorsement of K.S.A. 21-5503(e)/21-5504(f) means defendants cannot argue lack of knowledge of the victim’s nonconsent or being overcome. Defense focus will shift to attacking the State’s proof on nonconsent/“overcome,” rather than advancing a mistake-of-fact defense on those elements.

c) Trial Management and Advocacy

Multiple Acts Instruction: If the State does not elect, the instruction remains a robust cure. Prosecutors should organize proofs chronologically or thematically; trial courts should deliver a clear unanimity instruction; defense counsel should preserve objections only where the instruction is omitted or materially inadequate.
Closing Argument Boundaries: Prosecutors may argue reasonable inferences grounded in the record and may use offense labels when tethered to evidence. References to general traits of “some rapists” risk irrelevance and should be avoided. Assertions like “grooming-as-force” require evidentiary predicates; otherwise, they risk reversible error.

Complex Concepts Simplified

Actus Reus vs. Descriptive Facts: The “actus reus” is the core criminal action the law prohibits—in these statutes, it is that the victim was “overcome.” “Force or fear” are descriptive facts that can prove that overcoming occurred; they are not separate crimes or separate elements within subsection (A).
Unified Means vs. Alternative Means: A “unified means” is one way to commit the offense. Here, “overcome by force or fear” is one means. “Alternative means” exist when different subsection paragraphs (separated by semicolons) define distinct ways to commit a crime. The distinction affects jury unanimity and sufficiency analyses.
Vagueness—Fair Notice vs. Arbitrary Enforcement: A law is vague if ordinary people cannot tell what conduct is prohibited (fair notice) or if it allows ad hoc, subjective enforcement (arbitrary enforcement). Kansas now associates fair notice with due process, and arbitrary enforcement with separation of powers—though concurring justices question the utility of this bifurcation.
Subjective Fear: Fear varies by person and circumstance. The law does not demand objective “reasonable person” benchmarks to prove a victim was overcome by fear; the jury decides whether the claimed fear credibly explains submission.
Grooming: A pattern of behaviors used by abusers to gain trust, desensitize, and control victims, often eroding resistance. It can, with proper expert explanation and evidence, contribute to proving a victim was “overcome,” but it is not automatically “force” without proof connecting grooming to the victim’s inability to resist.
Multiple Acts vs. Alternative Means: “Multiple acts” cases involve several discrete criminal acts that could each support a single count; jurors must agree on the same act (cured by a specific unanimity instruction). “Alternative means” cases involve different legal ways to commit a single act; unanimity is not required as to the means if sufficient evidence supports each alternative submitted.

Conclusion

State v. Ninh solidifies three significant propositions in Kansas criminal law. First, “when the victim is overcome by force or fear” in the rape and aggravated criminal sodomy statutes is a single, unified means; the actus reus is “to overcome,” and “force or fear” are factual descriptors that may establish that element. Second, the statutes withstand vagueness scrutiny: ordinary meaning supplies fair notice; the statutes’ elements and burdens prevent arbitrary enforcement, even with the “not a defense” clauses. Third, the Court provides pragmatic guidance on closing argument: while it was error to argue “grooming-as-force” without a foundation in the trial record, grooming can, in principle, evidence “force or fear” when appropriately supported, often with expert testimony.

On case-specific issues, the Court found the evidence sufficient on “fear,” confirmed no unanimity error where a proper multiple acts instruction was given, and held the prosecutorial errors were harmless in light of the record. The concurrences foreshadow continued debate over the scope of vagueness review and the relationship between due process and separation of powers. For practitioners, Ninh offers a clear roadmap for charging, instructing, and proving “overcome by force or fear,” and a caution: nuanced psychological concepts like grooming must be adequately developed in the evidentiary record before being deployed to satisfy statutory elements in closing argument.