dissenting: I cannot accept the majority’s conclusion that the evidence is sufficient for a rational factfinder to find beyond a reasonable doubt that J.C. was overcome by force and fear.
Unquestionably, J.C.’s testimony was conflicting as to whether she asked the defendant to stop or ever said “no” to the defendant. What she testified to on direct examination she contradicted on cross-examination. Nevertheless, I agree with the majority that the evidence, taken as a whole, was sufficient to support a finding that she did not consent to the sexual intercourse. However, pursuant to K.S.A. 21-3502, the State must also prove that J.C. was overcome by force or fear. Nonconsensual sexual intercourse is not rape unless it is doné under one of the four circumstances set out in K.S.A. 21-3502.
As stated by the Pennsylvania Supreme Court in Com. v. Berkowitz, 537 Pa. 143, 149, 641 A.2d 1161 (1994):
“As to the complainant’s testimony that she stated ‘no’ throughout the encounter with Appellee, we point out that, while such an allegation of fact would *921be relevant to the issue of consent, it is not relevant to the issue of force. In Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988) (plurality opinion), this Court sustained the reversal of a defendant’s conviction of rape where the alleged victim, a minor, repeatedly stated that she did not want to engage in sexual intercourse, but offered no physical resistance and was compelled to engage in sexual intercourse under threat of being recommitted to a juvenile detention center. The Opinion in Support of Affirmance acknowledged that physical force, a threat of force, or psychological coercion may be sufficient to support the element of ‘forcible compulsion,’ if found to be enough to ‘prevent resistance by a person of reasonable resolution.’ However, under the facts of Mlinarich, neither physical force, the threat of physical force, nor psychological coercion were found to have been proven, and this Court held that the conviction was properly reversed by the Superior Court. Accordingly, the ruling in Mlinarich implicitly dictates that where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the ‘forcible compulsion’ requirement under 18 Pa. C.S. § 3121 is not met."
I agree with the majority that “violent assaults and life-threatening actions are not necessary to sustain a ‘force or fear’ rape conviction.” However, more than the unsupported conclusory statement of the victim is required.
J.C. testified on cross-examination:
“Q. And it’s true that you felt some discomfort when this happened is what you’ve told us; is that correct?
“A. Yes.
“Q. And even then you did not tell Mr. Borthwick to stop, did you?
“A. I told him to think about it.
“Q. Right. But you did not tell him to stop, did you?
“A: No.
“Q. And you did not tell him no, did you?
“A. No.
“Q. As a matter of fact, I’ve asked you before and it’s true, that Mr. Borthwick did not force you in any fashion, did he?
“A, No.
“Q. At no time did Mr. Borthwick threaten you, did he?
“A. No.
“Q. At no time did you tell Mr. Borthwick you were afraid; isn’t that correct?
“A. No.
“Q. That’s not correct or—
“A. I said, Tes, it’s correct,’ but you don’t tell anybody that you’re afraid of ‘um.
*922“Q. Okay. As a matter of fact, you’ve testified that there was nothing you did that would give Mr. Borthwick the indication that you were afraid; isn’t that correct?
“A. That’s correct.
“Q. At no time did he apply force to you to make you do something out of force; isn’t that correct?
“A. That’s correct.
“Q. And you did nothing to show Mr. Borthwick or indicate to Mr. Borthwick that you were afraid of him; isn’t that correct?
“A. I put my legs together.”
On redirect examination, the following questions were asked by the State’s prosecutor and answered by J.C.:
“Q. Okay. But you never used the word no; is that correct?
“A. That’s correct.
“Q. You stated that the defendant didn’t force you in any way to do — for him to do these things to you.
“A. Yes.
“Q. Okay. You also said though that you held your legs together. What was the reason that you tried to hold your legs together?
“A. ‘Cause he was trying to put his fingers inside of me.
“Q. And what did you think holding or trying to hold your legs together would do?
“A. Try and stop him.
“A. I was afraid of him, yes.
“Q. What was it that you were afraid of?
“A. Well, he didn’t — he didn’t put his — he didn’t put all of his sentences together and there was pieces and that wasn’t exactly put together in my mind.
“Q. Okay. How did that frighten you?
“A. Well, he didn’t tell me the truth and I didn’t think it was fair of him not to tell me the truth.
“Q. You stated in your cross-examination testimony that you don’t tell anyone you’re afraid of them. Can you explain that?
“A. Well, if somebody’s bigger than you are and you’re smaller, which I am, you don’t tell anybody that you’re afraid of them ‘cause they might hurt you.”
Finally, on recross-examination, J.C. testified:
"Q. Okay. When Mr. Borthwick, according to your testimony, was putting his fingers inside you, he wasn’t pinning you down, was he?
“A. No.
“Q. He didn’t have his body weight on top of you, did he?
“A. No.
*923“Q. No, he had nothing to force you at that point, had he?
“A. No.
“Q. Okay. Furthermore, Mr. Borthwick wasn’t threatening you in any fashion, was he?
“A. No.
“Q. Nothing he was doing caused you — let me rephrase that. He did not say something to you that caused you to be afraid, did he?
“A. No.
“Q. He didn’t say, ‘I’m going to kill you if you tell anybody about this,’ correct?
“A. No.
“Q. He didn’t say, ‘You’ll go to jail because of this,’ correct?
“A. No.
“Q. The only thing Mr. Borthwick ever said to you was, according to your testimony, is that he would be in trouble, correct?
“A. Yes.
“Q. Now, he didn’t say anything to you to cause you to be afraid of him, did he?
“A. No.
“Q. The only thing that you’re upset about or you’re afraid of is the fact that it might hurt, correct?
“A. Yes.
“Q. And that your mother would be upset, correct?
“A. Yes, there’s no doubt in my mind.
“Q. But Mr. Borthwick didn’t threaten you, did he?
“A. No.
“Q. And Mr. Borthwick did not apply force to you, did he?
“A. No.
“Q. So it was nothing that Mr. Borthwick did by what he said that caused you fear; isn’t that right?
“A. I was afraid of him. You don’t say it out loud. You can think it. You don’t tell anybody that you’re afraid of him.”
The majority finds this conclusory testimony of J.C. sufficient for a reasonable factfinder to find beyond a. reasonable doubt that J.C. was overcome by force or fear. The majority states:
“J.C. was alone in the house with the defendant, and before the defendant penetrated her vagina with his fingers, he touched her body in other places despite her requests that he stop. . . . [S]he tried to keep defendant from touching her by trying to keep her legs together, ‘but they came apart.’ J.C. testified that she was afraid throughout the incident and that she felt powerless to stop what was happening. ...
*924“J.C. testified that she was afraid, that she did not consent to the sexual intercourse, that she felt powerless to do anything to stop the assault, that she told the defendant to stop, and that he nevertheless continued.”
The fact that J.C. tried to keep her legs together is not evidence that the defendant used force. J.C. is a 21-year-old with cerebral palsy. She testified she could not walk or stand unaided. Obviously, she has limited use of, or strength in, her legs. She did not testily that the defendant forced her legs apart. The fact that J.C. tried to keep her legs together tends to support that she did not consent but not that force was used. This is particularly true in light of her testimony that the defendant did nothing to force her to have sexual intercourse. It should be noted that the State did not charge the defendant under K.S.A- 21-3502(b), which proscribes nonconsensual sexual intercourse when the victim is physically powerless. The State makes no allegation or argument that J.C. was rendered powerless due to her physical condition.
The majority attempts, in my view unsuccessfully, to distinguish Berkowitz from the present case, stating:
“Fear in and of itself is inherently subjective. Unless otherwise limited in the statutory definition as it is in Pennsylvania, 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.”
In the recent case of People v. Iniguez, 7 Cal. 4th 847, 30 Cal. Rptr. 2d 258, 872 P.2d 1183 (1994), the California Supreme Court reversed the Court of Appeal’s decision which vacated the defendant’s rape conviction because the evidence of force or fear was insufficient to support the conviction. In finding the evidence of fear sufficient to support the verdict, the court noted that the relevant rape statute had been amended to eliminate the resistance requirement and the requirement that threat of immediate bodily harm be accompanied by an apparent power to inflict the harm. The court, however, noted:
“In [People v.] Barnes [42 Cal. 3d 284], we then addressed the question of the role of force or fear of immediate and unlawful bodily injury in the absence of a resistance requirement. We stated that ‘[although resistance is no longer *925the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction under section 261, subdivision (2).’ (Barnes, supra, 42 Cal. 3d at p. 304.) ‘Additionally, the complainant’s conduct must be measured against the degree of force manifested or in light of whether her fears were genuine and reasonably grounded.’ (Ibid.) ‘In some circumstances, even a complainant’s unreasonable fear of immediate and unlawful bodily injury may suffice to sustain a conviction under section 261, subdivision (2), if the accused knowingly takes advantage of that fear in order to accomplish sexual intercourse.’ ” 7 Cal. 4th at 856.
The court further stated:
“Thus, the element of fear of immediate and unlawful bodily injuiy has two components, one subjective and one objective. The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citations omitted.]
“In addition, the prosecution must satisfy the objective component, which asks whether the victim’s fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it.” 7 Cal. 4th at 856-57.
The court then applied these principles to the evidence and concluded that there was substantial evidence that the victim’s fear of immediate and unlawful bodily injuiy was reasonable. The court relied on the following evidence:
“Defendant, who weighed twice as much as [the victim], accosted her while she slept in the home of a close friend, thus violating the victim’s enhanced level of security and privacy. (Cf. People v. Jackson (1992) 6 Cal. App. 4th 1185, 1190 [‘A person inside a private residence, whether it be their own or that of an acquaintance, feels a sense of privacy and security not felt when outside or in a semipublic structure . . . providing the (attacker) with the advantages of shock and surprise which may incapacitate the victim(s).’])
“Defendant, who was naked, then removed [the victim’s] pants, fondled her buttocks, and inserted his penis into her vagina for approximately one minute, without warning, without her consent, and without a reasonable belief of consent. Any man or woman awakening to find him or herself in this situation could reasonably react with fear of immediate and unlawful bodily injury. Sudden, unconsented-to groping, disrobing, and ensuing sexual intercourse while one appears to he sleeping is an appalling and intolerable invasion of one’s personal autonomy that, in and of itself, would reasonably cause one to react with fear.” 7 Cal. 4th at 858.
*926“ ‘[S]he knew that the man had been drinking. She hadn’t met him before; he was a complete stranger to her. When she realized what was going on, she said she panicked, she froze. She was afraid that if she said or did anything, his reaction could be of a violent nature.’ ” 7 Cal. 4th at 852 (quoting trial testimony).
“In addition, immediately after the attack, [the victim] was so distraught her friend Pam could barely understand her. [The victim] hid in the bushes outside the house waiting for Pam to pick her up because she was terrified defendant would find her; she subsequently asked Pam if the word ‘rape’ was written on her forehead, and had to be dissuaded from bathing prior to going to the hospital. [Citation omitted.]” 7 Cal. 4th at 857-58.
This evidence is in stark contrast to the evidence in the present case, particularly as to whether J.C. was overcome by fear.
Here, the majority totally ignores ttie objective component to the element of fear. What rendered J.C. to be immobilized by fear? That the defendant “didn’t put all of his sentences together” and “he didn’t tell . . . the truth.” J.C. testified the defendant never threatened, coerced, or used force. How can a “reasonable factfinder” find her fear to be “reasonable”? Although J.C. testified she was afraid, her fear was not of what would happen to her if she did not submit to the defendant. She testified on cross-examination that “the only thing” she was afraid of was that “it might hurt,” “that [her] mother would be upset,” and what defendant’s wife would think.
A majority of this court, citing State v. Cooper, 252 Kan. 340, 347, 845 P.2d 631 (1993), holds: “Under Kansas law, when a victim testifies that she was overcome by fear, and her testimony is not ‘so incredible as to defy belief,’ there is sufficient evidence to present the ultimate determination to the factfinder.” In Cooper, we merely noted this rule was of a common-law origin and had not been modified. It had no application in Cooper since we found the victim’s testimony was corroborated by “physical evidence, witness testimony, and by Cooper’s own statements.” 252 Kan. at 347. Nevertheless, it does provide an example of a victim’s testimony which would alone sustain a rape conviction. The victim testified that Cooper beat her, threatened her, held her against her will, sat on her, tied her up, and choked her. I agree that the testimony of a victim alone can be sufficient to support a rape *927conviction, provided, however, that the testimony recites a factual basis to reasonably conclude that the victim was overcome by fear. Although the majority fails to define fear in the context of K.S.A. 21-3502, it does essentially redefine rape as nonconsensual sexual intercourse. If nonconsensual sexual intercourse, other than under the circumstances set out in K.S.A. 21-3502, is to be made a felony offense, it must be done by the legislature and not this court.
Simply stated, the majority holds that the State need not prove beyond a reasonable doubt that the victim is overcome by force or fear but, rather, a conclusory statement from the victim to that effect is sufficient. Absent the legislature’s amending K.S.A. 21-3502,1 cannot accept that to be the law in this state. I agree with Judge Kay Royse that the evidence is not sufficient to establish that J.C. was overcome by force or fear.
Abbott, J., joins the foregoing dissenting opinion.