Providing an exception to criminal liability when a defendant has a mental disease or defect so as not to know the nature of the act or that such act was wrong.

Session of 2026
HOUSE BILL No. 2538
By Committee on Judiciary
Requested by Keri Strahler on behalf of Shawnee County Mercy Advocates
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AN ACT concerning crimes, punishment and criminal procedure; relating
to principles of criminal liability; providing an exception to criminal
liability when a defendant has a mental disease or defect so as not to
know the nature of the act or that such act was wrong; amending
K.S.A. 21-5209, 22-3219, 22-3221, 22-3222 and 22-3428 and repealing
the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 21-5209 is hereby amended to read as follows: 21-
5209. It shall be a defense to a prosecution under any statute that:
(a) The defendant, as a result of mental disease or defect, lacked the
culpable mental state required as an element of the crime charged . Mental
disease or defect is not otherwise a defense; or
(b) at the time of committing the alleged criminal act, the defendant
was laboring under a mental disease or defect so as not to know:
(1) The nature and quality of such act; or
(2) that such act was wrong.
Sec. 2. K.S.A. 22-3219 is hereby amended to read as follows: 22-
3219. (1)(a) Evidence of mental disease or defect excluding criminal
responsibility is not admissible upon a trial unless the defendant serves
upon the prosecuting attorney and files with the court a written notice of
such defendant's intention to assert the defense that the defendant, as a
result of mental disease or defect lacked the mental state required as an
element of the offense charged a defense described in K.S.A. 21-5209, and
amendments thereto. Such notice must be served and filed before trial and
not more than 30 days after entry of the plea of not guilty to the
information or indictment. For good cause shown the court may permit
notice at a later date.
(2)(b) A defendant who files a notice of intention to assert the defense
that the defendant, as a result of mental disease or defect lacked the mental
state required as an element of the offense charged a defense described in
K.S.A. 21-5209, and amendments thereto, thereby submits and consents to
abide by such further orders as the court may make requiring the mental
examination of the defendant and designating the place of examination and
the physician or licensed psychologist by whom such examination shall be
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HB 2538 2
made. No order of the court respecting a mental examination shall
preclude the defendant from procuring at such defendant's own expense an
examination by a physician or licensed psychologist of such defendant's
own choosing. A defendant requesting a mental examination pursuant to
K.S.A. 22-4508, and amendments thereto, may request a physician or
licensed psychologist of such defendant's own choosing. The judge shall
inquire as to the estimated cost for such examination and shall appoint the
requested physician or licensed psychologist if such physician or licensed
psychologist agrees to accept compensation in an amount in accordance
with the compensation standards set by the board of supervisors of panels
to aid indigent defendants. A report of each mental examination of the
defendant shall be filed in the court and copies thereof shall be supplied to
the defendant and the prosecuting attorney.
Sec. 3. K.S.A. 22-3221 is hereby amended to read as follows: 22-
3221. (a) In any case in which the defense has offered substantial evidence
of a mental disease or defect excluding the mental state required as an
element of the offense charged pursuant to K.S.A. 21-5209(a), and
amendments thereto, and the jury returns a verdict of "not guilty," the jury
shall also answer a special question in the following form: "Do you find
the defendant not guilty solely because the defendant, at the time of the
alleged crime, was suffering from as a result of a mental disease or defect
which rendered the defendant incapable of possessing the required
criminal intent, lacked the culpable mental state required as an element of
the alleged crime ?" The provisions of this section shall be in force and
take effect on and after January 1, 1996.
(b) In any case in which the defense has offered substantial evidence
of a mental disease or defect excluding criminal responsibility for the
offense charged pursuant to K.S.A. 21-5209(b), and amendments thereto,
and the jury returns a verdict of "not guilty," the jury shall also answer a
special question in the following form: "Do you find the defendant not
guilty solely because the defendant, at the time of the alleged criminal act,
was laboring under a mental disease or defect so as not to know: (1) The
nature and quality of such act; or (2) that such act was wrong?"
Sec. 4. K.S.A. 22-3222 is hereby amended to read as follows: 22-
3222. In any case in which the defendant is found not guilty of a charged
crime, and the special question under K.S.A. 22-3221 is answered jury
answers in the affirmative to a special question asked pursuant to K.S.A.
22-3221, and amendments thereto , and the defendant is also found guilty
of a lesser included or otherwise charged offense, the court shall proceed
in the manner authorized by K.S.A. 22-3429 et seq., and amendments
thereto. The provisions of this section shall be in force and take effect on
and after January 1, 1996.
Sec. 5. K.S.A. 22-3428 is hereby amended to read as follows: 22-
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HB 2538 3
3428. (a) (1) When a defendant is acquitted and the jury answers in the
affirmative to the a special question asked pursuant to K.S.A. 22-3221,
and amendments thereto, the defendant shall be committed to the state
security hospital or an appropriate secure facility for safekeeping and
treatment and the prosecuting attorney shall provide victim notification. A
finding of not guilty and the jury answering in the affirmative to the a
special question asked pursuant to K.S.A. 22-3221, and amendments
thereto, shall be prima facie evidence that the acquitted defendant is
presently likely to cause harm to self or others.
(2) Within 90 days of after the defendant's admission, the chief
medical officer of the state security hospital or licensed psychologist at the
appropriate secure facility shall send to the court a written evaluation
report. Upon receipt of the report, the court shall set a hearing to determine
whether or not the defendant is currently a mentally ill person. The hearing
shall be held within 30 days after the receipt by the court of the chief
medical officer's report unless the court finds that exceptional
circumstances warrant delay of the hearing.
(3) The court shall give notice of the hearing to the chief medical
officer of the state security hospital or licensed psychologist at the
appropriate secure facility, the prosecuting attorney, the defendant and the
defendant's attorney. The prosecuting attorney shall provide victim
notification. The court shall inform the defendant that such defendant is
entitled to counsel and that counsel will be appointed to represent the
defendant if the defendant is not financially able to employ an attorney as
provided in K.S.A. 22-4503 et seq., and amendments thereto. The
defendant shall remain at the state security hospital pending the hearing.
(4) At the hearing, the defendant shall have the right to present
evidence and cross-examine witnesses. At the conclusion of the hearing, if
the court finds by clear and convincing evidence that the defendant is not
currently a mentally ill person, the court shall dismiss the criminal
proceeding and discharge the defendant, otherwise the court may commit
the defendant to the state security hospital or an appropriate secure facility
for treatment or may place the defendant on conditional release pursuant to
subsection (d). The prosecuting attorney shall provide victim notification
regarding the outcome of the hearing.
(b) Subject to the provisions of subsection (c):
(1) Whenever it appears to the chief medical officer of the state
security hospital or a licensed psychologist at the appropriate secure
facility that a person committed under subsection (a)(4) is not likely to
cause harm to other persons in a less restrictive hospital environment, the
officer may transfer the person to any state hospital, subject to the
provisions of subsection (c) . At any time subsequent thereto during which
such person is still committed to a state hospital, if the chief medical
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HB 2538 4
officer of that hospital or the licensed psychologist at the appropriate
secure facility finds that the person may be likely to cause harm or has
caused harm, to others, such officer may transfer the person back to the
state security hospital.
(2) Any person committed under subsection (a)(4) may be granted
conditional release or discharge as an involuntary patient.
(c) Before transfer of a person from the state security hospital or
appropriate secure facility pursuant to subsection (b)(1) or conditional
release or discharge of a person pursuant to subsection (b)(2), the chief
medical officer of the state security hospital or the state hospital where the
patient is under commitment or the licensed psychologist at the
appropriate secure facility shall give notice to the district court of the
county from which the person was committed that transfer of the patient is
proposed or that the patient is ready for proposed conditional release or
discharge. Such notice shall include, but not be limited to: (1)
Identification of the patient; (2) the course of treatment; (3) a current
assessment of the defendant's mental illness; (4) recommendations for
future treatment, if any; and (5) recommendations regarding conditional
release or discharge, if any. Upon receiving notice, the district court shall
order that a hearing be held on the proposed transfer, conditional release or
discharge. The court shall give notice of the hearing to the appropriate
secure facility, state hospital or state security hospital where the patient is
under commitment, to the prosecuting attorney of the county from which
the person was originally ordered committed. The prosecuting attorney
shall provide victim notification regarding the hearing. The court shall
order the involuntary patient to undergo a mental evaluation by a person
designated by the court. A copy of all orders of the court shall be sent to
the involuntary patient and the patient's attorney. The report of the court
ordered mental evaluation shall be given to the prosecuting attorney, the
involuntary patient and the patient's attorney at least seven days prior to
the hearing. The hearing shall be held within 30 days after the receipt by
the court of the chief medical officer's notice unless the court finds that
exceptional circumstances warrant delay of the hearing. The involuntary
patient shall remain in the appropriate secure facility, state hospital or state
security hospital where the patient is under commitment until the hearing
on the proposed transfer, conditional release or discharge is to be held. At
the hearing, the court shall receive all relevant evidence, including the
written findings and recommendations of the chief medical officer of the
state security hospital or the state hospital or the licensed psychologist of
the appropriate secure facility where the patient is under commitment, and
shall determine whether the patient shall be transferred to a less restrictive
hospital environment or whether the patient shall be conditionally released
or discharged. The patient shall have the right to present evidence at such
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HB 2538 5
hearing and to cross-examine any witnesses called by the prosecuting
attorney. At the conclusion of the hearing, if the court finds by clear and
convincing evidence that the patient will not be likely to cause harm to self
or others if transferred to a less restrictive hospital environment, the court
shall order the patient transferred. If the court finds by clear and
convincing evidence that the patient is not currently a mentally ill person,
the court shall order the patient discharged or conditionally released;
otherwise, the court shall order the patient to remain in the state security
hospital or state hospital where the patient is under commitment. If the
court orders the conditional release of the patient in accordance with
subsection (d), the court may order as an additional condition to the release
that the patient continue to take prescribed medication and report as
directed to a person licensed to practice medicine and surgery to determine
whether or not the patient is taking the medication or that the patient
continue to receive periodic psychiatric or psychological treatment. The
prosecuting attorney shall notify any victims of the outcome of the
hearing.
(d) In order to ensure the safety and welfare of a patient who is to be
conditionally released and the citizenry of the state, the court may allow
the patient to remain in custody at a facility under the supervision of the
secretary for aging and disability services or the head of the appropriate
secure facility for a period of time not to exceed 45 days in order to permit
sufficient time for the secretary to prepare recommendations to the court
for a suitable reentry program for the patient and allow adequate time for
the prosecuting attorney to provide victim notification. The reentry
program shall be specifically designed to facilitate the return of the patient
to the community as a functioning, self-supporting citizen, and may
include appropriate supportive provisions for assistance in establishing
residency, securing gainful employment, undergoing needed vocational
rehabilitation, receiving marital and family counseling, and such other
outpatient services that appear beneficial. If a patient who is to be
conditionally released will be residing in a county other than the county
where the district court that ordered the conditional release is located, the
court shall transfer venue of the case to the district court of the other
county and send a copy of all of the court's records of the proceedings to
the other court. In all cases of conditional release the court shall:
(1) Order that the patient be placed under the temporary supervision
of district court probation and parole services, community treatment
facility or any appropriate private agency; and
(2) require as a condition precedent to the release that the patient
agree in writing to waive extradition in the event a warrant is issued
pursuant to K.S.A. 22-3428b, and amendments thereto.
(e) At any time during the conditional release period, a conditionally
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HB 2538 6
released patient, through the patient's attorney, or the prosecuting attorney
of the county where the district court having venue is located may file a
motion for modification of the conditions of release, and the court shall
hold an evidentiary hearing on the motion within 14 days of its filing. The
court shall give notice of the time for the hearing to the patient and the
prosecuting attorney. If the court finds from the evidence at the hearing
that the conditional provisions of release should be modified or vacated, it
shall so order. If at any time during the transitional period the designated
medical officer or supervisory personnel or the treatment facility informs
the court that the patient is not satisfactorily complying with the provisions
of the conditional release, the court, after a hearing for which notice has
been given to the prosecuting attorney and the patient, may make orders:
(1) For additional conditions of release designed to effect the ends of the
reentry program; (2) requiring the prosecuting attorney to file a petition to
determine whether the patient is a mentally ill person as provided in
K.S.A. 59-2957, and amendments thereto; or (3) requiring that the patient
be committed to the appropriate secure facility, state security hospital or
any state hospital. In cases where a petition is ordered to be filed, the court
shall proceed to hear and determine the petition pursuant to the care and
treatment act for mentally ill persons and that act shall apply to all
subsequent proceedings. If a patient is committed to any state hospital
pursuant to this act the prosecuting attorney shall provide victim
notification. The costs of all proceedings, the mental evaluation and the
reentry program authorized by this section shall be paid by the county
from which the person was committed.
(f) In any case in which the a defense that the defendant lacked the
required mental state pursuant to described in K.S.A. 21-5209, and
amendments thereto, is relied on, the court shall instruct the jury on the
substance of this section.
(g) As used in this section and K.S.A. 22-3428a, and amendments
thereto:
(1) "Likely to cause harm to self or others" means that the person is
likely, in the reasonably foreseeable future, to cause substantial physical
injury or physical abuse to self or others or substantial damage to another's
property, or evidenced by behavior causing, attempting or threatening such
injury, abuse or neglect.
(2) "Mentally ill person" means any person who:
(A) Who is suffering from a severe mental disorder to the extent that
such person is in need of treatment; and
(B) who is likely to cause harm to self or others; and
(C) whose diagnosis is not solely one of the following mental
disorders:
(i) Alcohol or chemical substance abuse;
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HB 2538 7
(ii) antisocial personality disorder;
(iii) intellectual disability;
(iv) organic personality syndrome; or
(v) an organic disorder.
(3) "Treatment facility" means any mental health center or clinic,
psychiatric unit of a medical care facility, psychologist, physician or other
institution or individual authorized or licensed by law to provide either
inpatient or outpatient treatment to any patient.
Sec. 6. K.S.A. 21-5209, 22-3219, 22-3221, 22-3222 and 22-3428 are
hereby repealed.
Sec. 7. This act shall take effect and be in force from and after its
publication in the statute book.
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