dissenting: I must respectfully dissent from my colleagues’ choice of overturning this man’s rape conviction. They call for new legislation to cure what they perceive is a problem. Without seeing a witness, without hearing a voice, and without observing the victim confronted by the defendant, the majority is substituting its verdict for that of the jury when it holds there is not enough evidence presented in this trial to prove Brooks used force to rape his former wife. In contrast, a jury that did see the witnesses, did hear their testimony, and did observe the demeanor of the victim and the defendant during the course of tire trial, held there was *627sufficient evidence. After weighing the words in the trial transcript, the majority has decided that the evidence does not comply with the majority’s complex and confusing notions of the amount of force legally necessary to obtain a conviction for rape. By doing so, it has minimized the use of psychological force to a virtual inapplicability in these situations. At the same time, it has tried to quantify the amount of fear necessary to sustain a rape conviction and provided scenarios that confuse, rather than clarify. I cannot tell from the majority opinion what constitutes sufficient force or fear to sustain a rape conviction in these situations.
With many words and much hand-wringing, the majority asserts that Brooks used no force, but only fear, to obtain sexual intercourse from his former wife. The majority concludes: “. . . [T]he threat Brooks made did not involve any present or future application of force and, in turn, the response it provoked in [the victim], however disquieting or upsetting, did not constitute fear of the sort that supports a rape charge under the Kansas law.” In other words, in the view of the majority, this victim did not have a valid fear. To the contrary, after hearing the following testimony and being properly instructed by the trial court on the law of rape in this state, his jury did find her will was overcome by force or fear:
“Q. When he confronted you with [the e-mails], reading them over the telephone, what was — what was your reaction to that?
“A. I felt ill. I just — -I just couldn’t believe it, and I just — it was just a veiy sick feeling.
“Q. And these are the e-mails that he brought with him on May 7th?
“A. Yes.
“Q. When [their young daughter] was asleep, what happened?
“A. He told me to come down.
“Q. Did you go downstairs?
“A. I hesitated, but, yes, I did.
“Q. Once you got downstairs, what happened?
“A. I tried to reason with him, I tried to get him to leave. I didn’t, you know, I didn’t want him there, and he got agitated, and his threats just remained the same, that he would take those e-mails, and he said he had copies of them at his apartment, and, you know, there is nothing that I could do to keep him from cariying out his threats, and if I didn’t have sex with him, then—
*628“Q. Did you — well, what did you say to him when he’s making these demands on you?
“A. I kept reminding him that we were divorced, and that, you know, he just— he didn’t need to ruin everybody’s life, and I said, you know, what he was doing wasn’t right, and I just wanted him to leave, it wasn’t going to change anything between him and I.
“Q. Did you make it clear to him that this was not something you wanted to do?
“A. Yes.
“Q. How did you — how do you know that you were clear about that?
“A. Because I said — I said, ‘I don’t want to do this.’ I said, ‘This is against my will.’ He said he didn’t have a problem with that.
“Q. Did you — well, after you communicated that to him, did he continue?
“A. Yeah. He — he insisted that I be the one [to] take my underwear off, and I didn’t at his first request, but he started getting agitated, then I did.
“Q. Once that happened, what happens next?
“A. He took his pants off and he put a condom on, and I just — I sat down in the chair, and he came up to me and went inside me, and he just held onto my legs, and then he was finished, and ■ — ■
“Q. Now, when you say he finished, what does he do?
“A. He just backs away, and he goes to the bathroom and flushes the condom.”
To clarify the scene even further, I must point out that Brooks came to her house, announced his intentions of obtaining sex from her, or else, even though their children were upstairs. He then waited around downstairs until his former wife put their youngest child to bed. Confronted with an agitated, threatening man, with her young, vulnerable children just upstairs, this woman was in a terrible predicament. Who can say this man did not force himself upon this woman for sexual intercourse?
Our Supreme Court recognizes such questions are questions of fact for a jury to determine if a victim is overcome by force or fear, for such questions do not lend themselves to definition as a matter of law. See State v. Borthwick, 255 Kan. 899, 909-14, 880 P.2d 1261 (1994). Constructive force has been defined as threats and intimidation used to gain control or prevent resistance. Black’s Law Dictionary 717 (9th ed. 2009). Brooks used such psychological or emotional force to overcome his former wife’s resistance. I believe the jury in this case had enough evidence of force and fear that a rational fact finder could find beyond a reasonable doubt that Brooks was guilty of rape.
*629Looking deeper, the Borthwick court clarified the concepts of force and fear in the context of a rape prosecution. Concerning force, the key is the jury’s determination whether the victim was overcome;
“The ‘force’ required to sustain a rape conviction in this state does not require that a rape victim resist to the point of becoming the victim of other crimes such as battery or aggravated assault. K.S.A. 21-3502 does not require the State to prove that a rape victim told the offender she did not consent, physically resisted the offender, and then endured sexual intercourse against her will. It does not require that a victim be physically overcome by force in the form of a beating or physical restraint. It requires only a finding that she did not give her consent and that the victim, was overcome by force or fear to facilitate the sexual intercourse.” (Emphasis added.) 255 Kan. at 914.
Then, when considering the use of fear, the court emphasizes the subjectivity of this finding for the jury:
“Fear in and of itself is inherently subjective. Unless otherwise limited in the statutory definition ... a finding that a particular victim is overcome by fear does not require proof that it is fear induced by threat of force that would prevent resistance by a reasonable person. What renders one person immobilized by fear may not frighten another at all. The reasonableness of a victim’s claim that she was overcome by fear necessarily enters into the factfinder’s determination about whether the victim is telling the truth. . . .
“. . . Under Kansas law, when a victim testifies that she was overcome by fear, and her testimony is not “ ‘so incredible as to defy belief,’ ” [citation omitted], there is sufficient evidence to present the ultimate determination to the factfinder. The reasonableness of a particular victim’s fear may affect the jury’s assessment of the victim’s credibility in arriving at its verdict.” Borthwick, 255 Kan. at 913-14.
We are duly bound to follow the guidance given by our Supreme Court. See State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). I think my colleagues disregard the lessons offered by Borthwick.
I fear the unintended consequences of die majority’s ruling. It hearkens back to the days when prosecutors would not file a rape case unless the victim had visible bruising, tom clothing, scratches and abrasions on her body, and at least one or two broken fingernails from her vain efforts to fight off her assailant. The majority’s disregard of psychological or emotional force could lead just to that *630reaction. Rape is all about the illegal imposition of power over a victim; that is an overcoming of will with force or fear. Clearly, the words found in this trial transcript are pale symbols when compared with the live testimony given before a jury. For example, we have no idea of the stature of Brooks compared to that of his former wife. His mere presence may be intimidating to her. I must point out that Brooks acted as his own counsel for much of this trial and cross-examined his victim in this case. I cannot tell what tone of voice he used or what mannerisms he employed during his probing questioning of her, but his jury did see and hear them. We, from this remote perch, cannot tell such things and that is the point. A juiy would have seen all that. A jury could have heard the tremor in her voice, if there was one. We cannot.
I would affirm Brooks’ conviction of the rape of his former wife.
I do agree that Brooks cannot be convicted of breach of privacy under tire limitations set out in K.S.A. 21-4002 and that conviction must be overturned.