July 10, 1998

ATTORNEY GENERAL OPINION NO. 98- 34

Mary Ann Shirley

Greenwood County Attorney

311 N. Main

Eureka, Kansas 67045

Re:	Crimes and Punishments; Kansas Criminal Code; Prohibited Conduct--
Crimes Against Persons--Battery; Domestic Battery; Age Requirement for Family or Household Member

Synopsis:	The crime of domestic battery as defined by K.S.A. 1997 Supp. 21-3412 is a battery committed by a family or household member against another family or household member. The statute's definition of "family or household member" includes a requirement that the member must be 18 years of age or older regardless whether the member is the perpetrator or the victim. Cited herein: K.S.A. 1997 Supp. 21-3412; K.S.A. 21-3414; 21-3609.

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Dear Ms. Shirley:

You request our opinion concerning the crime of domestic battery contained in K.S.A. 1997 Supp. 21-3412(c). Specifically, you inquire whether the definition of "family or household member" includes a requirement that both the perpetrator and the victim be over the age of 18.

K.S.A. 1997 Supp. 21-3412(c)(4) defines the crime of domestic battery as "a battery against a family or household member by a family or household member." A "family or household member" is defined at subsection (c)(4)(B) of K.S.A. 1997 Supp. 21-3412 as follows:

"[F]amily or household member means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time. . . ." (Emphasis added.)

The crime of domestic battery was created by the Legislature in 1996 and there are no appellate cases construing its provisions. Moreover, there is no legislative history that illuminates the reason why the age requirement was included.

In the absence of case law and legislative history, we rely on the rules of statutory construction to answer your query. As you know, penal statutes are strictly construed in favor of an accused so that individuals have adequate notice regarding what conduct is proscribed by law.1 A penal statute that creates a new offense and prescribes the punishment must clearly state the persons and acts denounced.2

Given the rules of statutory construction, it is our opinion that "family or household member" requires that the member be 18 years of age or older regardless whether the member is the perpetrator or the victim. This age requirement is plain and unambiguous and, therefore, we must give effect to the intention of the Legislature as expressed rather than determining what the law should or should not be.3

We acknowledge your frustration that there may be situations where family members under the age of 18 batter each other and this statute cannot be used to prosecute because of the age limitation. It would appear that possible charges could include misdemeanor battery pursuant to subsection (a) of K.S.A. 1997 21-3412, aggravated battery pursuant

to K.S.A. 21-3414, and child abuse at K.S.A. 21-3609. However, K.S.A. 1997 Supp. 21- 3412(c)(4)(B) is clear that domestic battery cannot be prosecuted if the family or household member, whether perpetrator or victim, is under the age of 18.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Mary Feighny

Assistant Attorney General

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