“Vulnerable Victim” Is Not an Element: Kentucky Clarifies KRS 501.100’s Role, Reconsiders Invited-Error Waiver for Jury Instructions, and Approves Limited Support-Person Accommodation

Introduction

In Gary Sweet v. Commonwealth of Kentucky, the Supreme Court of Kentucky affirmed convictions for first-degree rape, Class B incest, and being a first-degree persistent felony offender arising from repeated sexual assaults of an intellectually disabled stepdaughter. The case presented three principal appellate issues:

Whether legally erroneous “combination” jury instructions for first-degree rape and Class B incest—permitting conviction upon a “vulnerable victim” theory not contained in the statutory elements—deprived Sweet of a unanimous verdict and constituted palpable error under RCr 10.26.
Whether the trial court abused its discretion by declining to strike a juror for cause based on ambiguous statements about the defendant’s choice not to testify.
Whether allowing the adult victim’s legal guardian (her grandmother) to sit near her during testimony improperly prejudiced the jury.

In a published opinion authored by Justice Keller, the Court affirmed. The Court held the jury instructions clearly erred by embedding a “vulnerable victim” avenue that is not an element of first-degree rape or Class B incest. Nevertheless, the Court found no palpable error given the weight of the evidence of forcible compulsion. The Court also upheld the denial of a for-cause strike and approved the trial judge’s limited accommodation permitting the victim’s guardian to sit near—but not within—the witness box.

Significantly, Part II(A) of the opinion reconsiders the reach of the invited-error doctrine in the jury-instruction context, concluding on these facts that a defendant’s tender of similarly erroneous instructions does not automatically waive appellate review because there was no “knowing relinquishment” of the right. However, only three justices joined that section; two concurrences agreed with the result but would have found waiver based on existing precedent. The result is an important signal—but not a majority holding—about waiver and invited error that trial courts and litigants must read alongside prior case law.

Summary of the Opinion

Jury instructions: The Court held that the rape and incest instructions were legally erroneous because they permitted the jury to convict upon a “vulnerable victim” theory that is not an element of KRS 510.040 (first-degree rape) or KRS 530.020 (Class B incest). KRS 501.100 (offenses against vulnerable victims/continuing course of conduct) does not supply or replace the elements of the underlying crimes. Nevertheless, the error did not rise to palpable error because the record contained ample evidence of forcible compulsion, a valid basis for conviction on both counts, and there was no substantial possibility of a different result.
Waiver/invited error: Although Sweet tendered similar erroneous instructions, the Court analyzed the issue under palpable error rather than deeming it waived. The majority reasoned that waiver requires a “knowing relinquishment” and stressed the trial judge’s nondelegable responsibility to ensure legally correct instructions. Two concurrences disagreed, arguing prior cases make tendered instructions an invited error that forecloses palpable error review.
Juror strike for cause: No abuse of discretion occurred in declining to strike Juror 629. The juror’s statements were ambiguous, and the trial court—best positioned to read demeanor and gestures—reasonably concluded the juror would not hold the defendant’s silence against him. Defense counsel declined the court’s invitation to clarify the ambiguity at sidebar.
Support person for intellectually disabled adult witness: It was not reversible error to permit the victim’s legal guardian to sit near (but outside) the witness box during testimony. The Court balanced Marsy’s Law (Section 26A) and the accused’s fair-trial rights, found no statute or rule forbidding such accommodation, and concluded the limited measure did not produce inherent prejudice.

Analysis

Precedents Cited and Their Influence

Johnson v. Commonwealth, 676 S.W.3d 405 (Ky. 2023): Provides the two-step framework for palpable error review in unanimity contexts—identify the instructional error and then assess whether the error is palpable, including a searching review of the record and weight of the evidence.
Stewart v. Commonwealth, 306 S.W.3d 502 (Ky. 2010): Establishes palpable error when instructions allow conviction on a theory that does not constitute the charged crime.
Wright v. Commonwealth, 391 S.W.3d 743 (Ky. 2012); Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006): Instruct that criminal instructions should conform to the statute and intelligibly state the law.
Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010); Commonwealth v. Goss, 428 S.W.3d 619 (Ky. 2014); McNeil v. Commonwealth, 468 S.W.3d 858 (Ky. 2015): Address unanimous verdict principles—when a combination instruction mixes a legal theory that is invalid with a valid one and it is impossible to know which the jury followed, unanimity concerns can be triggered.
Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011), drawing on United States v. Olano, 507 U.S. 725 (1993), and United States v. Perez, 116 F.3d 840 (9th Cir. 1997): Distinguishes between forfeiture (subject to palpable/plain error) and waiver (knowing relinquishment not reviewable). The majority relies on this line to treat Sweet’s tendering of erroneous instructions as forfeiture, not waiver. Two concurrences, however, argue that subsequent Kentucky cases—Thornton (2013), Webster (2014), Rudd (2019), and Boggs (2025)—firmly hold that tendering substantially similar instructions invites error and forecloses palpable error review.
Voir dire and for-cause strikes: Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007); Ward v. Commonwealth, 587 S.W.3d 312 (Ky. 2019); RCr 9.36(1); Sturgeon v. Commonwealth, 521 S.W.3d 189 (Ky. 2017); Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991); Marsch, Fugate, Pennington. These cases frame the abuse-of-discretion standard, the non-mechanical nature of juror rehabilitation, and the role of objective indicators of bias.
Support person and victim rights: Holbrook v. Flynn, 475 U.S. 560 (1986) (inherent prejudice); KRS 421.575 (victim advocate accompaniment); KRS 421.350(2) (child-witness procedures); Ky. Const. § 26A (Marsy’s Law); Cavanaugh v. Commonwealth, 671 S.W.3d 17 (Ky. 2022) (balancing caution); Robertson v. Commonwealth, 677 S.W.3d 309 (Ky. 2023) (victim’s right to be present).

Legal Reasoning

1) KRS 501.100 does not supply or replace elements of first-degree rape or Class B incest

The indictment charged first-degree rape and incest “as a continuing course of conduct against a vulnerable victim.” The trial court’s instructions mirrored that language by providing two pathways to conviction for each offense: (i) forcible compulsion, or (ii) a “vulnerable victim” theory coupled with multiple acts. The opinion makes clear this was error.

KRS 501.100 recognizes “offense against a vulnerable victim” and authorizes a “continuing course of conduct” mechanism for charging and juror unanimity (jurors may agree multiple qualifying acts occurred within a defined period without agreeing on the specific acts). But the statute is not a substitute for the underlying offense elements. For first-degree rape under KRS 510.040(1), the Commonwealth must prove either forcible compulsion or sexual intercourse with a person incapable of consent because the person is physically helpless or less than 12 years old. Intellectual disability is an element of second-degree rape (KRS 510.050), not first-degree rape.

Similarly, for Class B incest under then-effective KRS 530.020, the elements require sexual intercourse with a statutorily defined relative, and classification as Class B depends on forcible compulsion or that the victim is under 18 or is physically helpless or mentally incapacitated. Intellectual disability, standing alone, is not listed in KRS 530.020 as a basis for Class B. Thus, the “vulnerable victim” pathway in the instructions permitted conviction on a legally impermissible theory.

This reasoning derives from Stewart and Wright/Parks: instructions must conform to statutory elements. KRS 501.100 can structure charges and verdict unanimity when multiple acts are alleged, but it cannot expand or replace the elements in KRS 510.040 or KRS 530.020.

2) Unanimity and combination instructions: legal and illegal theories cannot be blended

Under Travis, Goss, and McNeil, a combination instruction does not violate unanimity if both theories are legally correct and supported by evidence. But when one of the theories is legally invalid, the instruction risks a non-unanimous verdict because some jurors may convict on the invalid ground. Here, it was impossible to know whether all jurors convicted on the lawful forcible-compulsion pathway. The Court therefore recognized a unanimity problem, setting the stage for palpable error review.

3) Invited error, waiver, and palpable error: a contested doctrinal turn

Ordinarily, a party who tenders the same instruction given by the court cannot complain on appeal—classic invited error. Kentucky cases like Thornton (2013), Webster (2014), and Rudd (2019), and even civil analogues, have treated such situations as waiver that forecloses palpable error review. The majority, relying on Quisenberry and the forfeiture/waiver distinction in Olano and Perez, treats Sweet’s tendering as forfeiture, not waiver, because there was no evidence of a “knowing relinquishment” of the right to correct elements, and all parties—including the court—appeared unaware of the statutory mismatch. The opinion also stresses RCr 9.54’s requirement that the court instruct on the law of the case and the trial judge’s nondelegable duty to ensure correct elements, cautioning against deeming this duty waived by unknowing mistakes.

Important caveat: Only three justices joined Part II(A). Justice Conley, joined by Chief Justice Lambert, Justice Nickell, and Justice Thompson, concurred in the result but argued that tendering substantively identical instructions invites error and waives palpable error review, citing Thornton, Webster, Rudd, and Boggs (2025). Justice Thompson also concurred in result and underscored that, notwithstanding direct-appeal waiver, defendants may still pursue ineffective assistance claims under RCr 11.42 and Strickland. The upshot: the majority’s waiver analysis is a noteworthy signal but does not command a precedential majority; trial courts must read it alongside the existing invited-error line.

4) Palpable error analysis: ample evidence of forcible compulsion

Under RCr 10.26 and Johnson (2023), palpable error is “clear or plain” and requires a substantial possibility of a different result but for the error. The Court “plumbed the depths” of the trial record and found robust proof of forcible compulsion:

K.W. consistently said she never wanted sex, told Sweet “no” repeatedly, and acquiesced only out of fear.
Sweet made explicit and implied threats to harm K.W.’s mother and animals and killed K.W.’s rooster in front of her, instilling fear.
These facts fit KRS 510.010(2)’s definition of “forcible compulsion” (threat of physical force placing the victim in fear of immediate death, physical injury, kidnapping, or any offense under the chapter; no physical resistance required).

Given this evidence, the Court could not say the erroneous instruction created a substantial possibility of a different outcome, so no palpable error warranted reversal.

5) For-cause juror strike: deference to trial court on ambiguous answers

The Court applied the abuse-of-discretion standard and RCr 9.36. Juror 629’s remarks about the defendant’s silence were ambiguous. The trial court watched the juror’s gestures and demeanor and concluded he would not hold the defendant’s silence against him. The court offered to clarify at sidebar; defense counsel declined. Distinguishing Montgomery’s caution about “rehabilitation,” the Court explained that Montgomery prohibits “magic question” rehabilitation where bias is already established; here, bias was not established and a clarifying inquiry would have been appropriate. No abuse of discretion occurred.

6) Support person for intellectually disabled adult witness: first-impression guidance and careful balancing

Kentucky has statutes for victim advocates (KRS 421.575) and special procedures for child witnesses (KRS 421.350), but no explicit provision permitting a relative/guardian to sit near an adult witness. The Court treated the issue as one of first impression and balanced Marsy’s Law (Ky. Const. § 26A) with fair-trial principles, including avoiding “inherent prejudice” (see Holbrook). The trial court’s accommodation was restrained: the grandmother sat outside the witness box, off-camera, and silent. Given the record already showed the victim’s intellectual disability and vulnerabilities, the Court found no undue prejudice and affirmed the trial judge’s discretion.

Impact

A. Jury-instruction drafting in sex crimes: immediate corrections

Do not insert “vulnerable victim” as an alternative element in instructions for first-degree rape (KRS 510.040) or Class B incest (KRS 530.020). The elements must track the statute exactly.
KRS 501.100 can support “continuing course of conduct” charging and unanimity instructions (jurors must unanimously find two or more violations within a period) but it does not create alternate substantive pathways to liability for the underlying offense.
Combination instructions remain permissible only when all alternative theories are legally valid and supported by evidence.

B. Invited error and waiver: a live doctrinal tension

The majority’s approach suggests tendering an erroneous instruction is not an automatic waiver if the record shows no “knowing relinquishment,” aligning with Quisenberry/Perez.
But four justices endorse the contrary line (Thornton, Webster, Rudd, Boggs) that tendering substantially similar instructions invites error and forecloses palpable error review.
Because only three justices joined Part II(A), its waiver analysis is a strong signal but not a binding majority rule. Trial courts should continue to apply the established invited-error line unless and until a clear majority revisits it, while being mindful of the majority’s emphasis on the judge’s independent duty under RCr 9.54.

C. Voir dire practice

Ambiguous juror statements about a defendant’s silence warrant immediate, precise follow-up. Trial judges retain discretion to assess demeanor and may invite sidebar clarification; counsel should accept that invitation to preserve and clarify the record.
Montgomery does not forbid all “clarifying” inquiries; it bars reliance on “magic question” rehabilitation where bias is objectively established. Distinguish ambiguity from established bias.

D. Accommodations for vulnerable adult witnesses

Courts may permit a limited support person (e.g., a guardian) to sit near an intellectually disabled adult witness when tailored to avoid prejudice—outside the box, off-camera, no speaking or coaching.
Create a clear record articulating the need, the limits imposed, and why the measure does not risk inherent prejudice. This aligns with Marsy’s Law’s concerns for safety, dignity, and privacy while safeguarding fair trial rights.

E. Post-conviction litigation

As Justice Thompson notes, palpable-error outcomes on direct appeal do not foreclose ineffective-assistance claims under RCr 11.42 and Strickland. Where counsel proposed or accepted plainly erroneous instructions that diluted the elements, defendants may pursue post-conviction relief by proving deficient performance and prejudice.

Complex Concepts Simplified

Palpable error (RCr 10.26): An unpreserved error that is clear or plain and creates a substantial possibility the outcome would have been different. Relief is reserved for errors that threaten the integrity of the process.
Unanimous verdict: Kentucky requires a unanimous verdict on each element of a crime. Combination instructions are acceptable if each alternative theory is legally correct and supported by evidence; mixing a legal theory with an illegal one risks non-unanimity.
Invited error versus waiver versus forfeiture:
- Invited error: A party cannot complain of an error it induced—often treated as waiver.
- Waiver: The intentional, knowing relinquishment of a known right; generally not reviewable.
- Forfeiture: Failure to timely assert a right without intentional relinquishment; eligible for palpable (plain) error review.
KRS 501.100 (vulnerable victim/continuing course of conduct): A charging and verdict-unanimity statute that applies when the victim is, among others, intellectually disabled or mentally incapacitated. It does not change the elements of the underlying offense; it manages proof and unanimity over multiple acts within a timeframe.
Forcible compulsion (KRS 510.010(2)): Physical force or threat of physical force (express or implied) that places a person in fear of immediate death, physical injury, kidnapping, or any offense under KRS Chapter 510; resistance is not required.
Support person for witnesses: Kentucky statutes expressly cover victim advocates and child-witness procedures. For adult vulnerable witnesses, accommodations are discretionary; courts must tailor them to avoid prejudice and preserve fairness.

Conclusion

Sweet v. Commonwealth delivers three important messages. First, it clarifies that the “vulnerable victim” framework in KRS 501.100 does not supply elements of first-degree rape or Class B incest; jury instructions must track the statutes, and a “vulnerable victim” theory cannot substitute for forcible compulsion (or other statutorily enumerated incapacities) in first-degree rape, or for the specific criteria that elevate incest to Class B. Second, the Court identifies unanimity dangers when instructions blend lawful and unlawful theories, but it finds no palpable error here because the evidence of forcible compulsion was ample. Third, the Court reaffirms trial judges’ broad discretion in voir dire and, for the first time in a published opinion, approves a narrowly tailored support-person accommodation for an intellectually disabled adult witness when balanced against the accused’s fair trial rights.

A notable, though non-majority, development is the majority’s approach to invited error in jury instructions: tendering erroneous instructions is not necessarily a waiver when the record shows no knowing relinquishment, and the trial judge’s nondelegable duty to ensure correct instructions remains paramount. Yet concurring justices emphasize continuity with longstanding Kentucky authority treating such tenders as invited error that forecloses palpable error review. Until a majority squarely resolves this tension, practitioners should assume the safer course—object clearly, propose correct instructions that mirror the statute, and ensure the record reflects any clarifications sought.

The case’s enduring takeaways are practical: draft instructions that strictly conform to statutory elements; use KRS 501.100 as a unanimity tool, not as an element; confront juror ambiguities immediately; and document, justify, and narrowly tailor accommodations for vulnerable witnesses. Properly applied, Sweet strengthens fidelity to statutory elements, clarifies the limits of combination instructions, and provides workable guidance for accommodating vulnerable victims without compromising the defendant’s right to a fair trial.