dissenting: I respectfully dissent from the majority’s conclusion that the district court did not abuse its discretion in denying Florentin’s departure motion. As the majority recognizes, Jessica’s Law specifically permits a district court to consider departing from a mandatory hard 25 life sentence in certain circum*607stances. K.S.A. 21-4643(d). Nevertheless, the record indicates the district judge may have misunderstood the parameters of that discretion, despite facts tailor-made for its application.
Notably, B.C. testified that during the summer of 2009, when she was 13 years old, she “dated” 19-year-old Florentin. B.C. told Officer Rebecca Mendoza that she and Florentin “made out” several times, engaged in open-mouth kissing, and that Florentin “fingered” her two times. According to B.C., before each of the two alleged instances of digital penetration, she got into Florentine truck on her own volition and “grabbed [Florentine] hand and led him to [her].”
In determining that B.C/s willing participation in the conduct was not a compelling or substantial reason to depart, the district court acknowledged that it could consider “consent” at the sentencing stage but concluded B.C/s willing participation was essentially a nonfactor because “the victim was 13.” The court essentially applied the same contradictoiy reasoning to reject Florentin s contention that his age, 19, was a mitigating factor and that the degree of harm in this case was less than usual. The judge stated:
“As far as the harm to this 13 year old, you know, didn’t bother her. I don’t remember the exact testimony, but it was no big deal. Well, you know, that’s the whole—that’s the whole thing in this case. You’ve got a young lady. You just— You just don’t do this with somebody that age.”
In short, the district court essentially disregarded many of the defendant’s proffered departure factors because “[y]ou just don’t do” what the defendant did, i.e., commit a Jessica’s Law offense.
While the sentencing provisions of Jessica’s Law clearly do apply to a 19-year-old man’s digital penetration of a 13-year-old girl, however willing the victim might be, the district judge appeared to be operating under the misconception that because such conduct is included within Jessica’s Law’s harsh penalties, the court could not legally consider those circumstances as a basis for departure. Of course, the circumstances underlying the crime can form the basis for departure. Moreover, the district court’s error in failing to consider the lack of harm to the victim or the victim’s and the defendant’s relative ages as departure factors was compounded by *608the district court’s failure to mention or consider the defendant’s lack of criminal history.
I would conclude that the district court abused its discretion by basing its decision on an erroneous legal conclusion that it could not consider the degree of harm to the victim, the victim’s willing participation, and the relative ages of the victim and defendant. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (explaining abuse of discretion standard). Further, I would conclude that when these factors are fully considered, along with the defendant’s lack of criminal history, the undisputed testimony that Florentin had a relatively low risk of reoffending, and tire other circumstances of the crime, no reasonable person could take the view taken by the trial court.
In that regard, I also take issue with the majority’s reliance on this court’s prior cases affirming denials of Jessica’s Law departure motions where the offender has cited mitigating factors such as the offender’s lack of criminal history, the offender’s age, the victim’s willing participation, the fact tire victim suffered a lower level of harm than typical, or a relatively low risk of reoffending.
Simply stated, the factual circumstances of those cases were far more egregious than the factual circumstances here, which the district court characterized as a 19-year-old defendant who “put his finger in a [13-year-old] young lady.” Cf. State v. Salinas, 294 Kan. 743, 748-50, 280 P.3d 221 (2012) (affirming denial of departure motion in Jessica’s Law case where defendant was convicted of committing oral sodomy against 6-year-old autistic child in defendant’s care); State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012) (affirming denial of Jessica’s Law departure motion where 27-year-old defendant was originally charged with 15 counts each of rape and aggravated criminal sodomy for acts he committed with 12-year-old victim within about a 1-year period); State v. Plotner, 290 Kan. 774, 780-81, 235 P.3d 417 (2010) (affirming denial of Jessica’s Law departure motion where defendant was over 30 years old and was convicted of “inappropriate sexual relations” with three stepdaughters, all of whom were under 14 years of age).
Nor can I agree with the majority’s implication that the trial court’s decision was somehow made more reasonable because the *609defendant’s suggested departure to 78 months’ imprisonment would have required a double departure—first from the Jessica’s Law sentence to the Kansas Sentencing Guidelines Act gridbox sentence (147, 155, or 165 months), and then to a sentence 78 months. Simply because the defendant suggested a departure sentence of 78 months, the trial court was not required to utilize the double departure methodology unless it actually departed to the level suggested by the defendant. Nor does the defendant’s request for a sentence that would have required a double departure somehow minimize the trial court’s error in refusing to consider the significance of some departure factors and ignoring others.
For these reasons, I would conclude that the district court abused its discretion by fading to properly apply the departure mechanism specifically provided for in K.S.A. 21-4643(d).
Beier and Johnson, JJ., join in the foregoing dissenting opinion.