concurring-in-part-and-dissenting-in-part">McFarland, C.J.,

concurring in part and dissenting in part: I concur in those portions of the opinion which affirm defendant’s conviction of aggravated criminal sodomy and which disapprove of two of the three statutory factors relied upon by the sentencing court in entering the downward durational departure sentence. I dissent from the opinion’s conclusion that the remaining factor and the evidence thereof was legally sufficient to support the downward departure sentence.

The factor found legally sufficient herein is K.S.A. 1998 Supp. 21-4716(b)(1)(A), which provides in pertinent part:

“(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.”

Specifically, the judge stated the victim was a participant in crime.

*314K.S.A. 21-4721 concerns appellate review of departure sentences and provides in pertinent part:

“(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure:

(1) Are supported by the evidence in the record; and

(2) constitute substantial and compelling reasons for departure.”

Whether the factors relied upon by the court constitute substantial and compelling reasons for departure is a question of law. The court must state on the record at the time of sentencing the substantial and compelling reasons for the departure. The court’s comments at the time of sentencing govern as to the reasons for departure. State v. Jackson, 262 Kan. 119, 134-35, 936 P.2d 761 (1997).

The term “substantial” refers to something that is real, not imagined, something with substance and hot ephemeral. The term “compelling” implies that the court is forced, by the facts of the case, to leave the status quo or go beyond what is ordinary. State v. Eisele, 262 Kan. 80, 84, 936 P.2d 742 (1997).

The legislature has determined the presumptive sentence herein. Only if there is a substantial reason that is so out of the ordinary that it compels imposition of a greater or lesser sentence may the court depart from the presumptive sentence. What is the evidence in this case that “compels” the sentence imposed to be less than that determined by the legislature to be appropriate for the crime of aggravated sodomy?

The victim was 13 years old at the time. Her age alone would make the offense aggravated sodomy as opposed to sodomy. Neither force nor fear need be shown as elements of the offense where the victim is 13 years old. So their absence is no basis for a downward departure. Their presence could support an upward departure, as they would constitute an aggravating circumstance.

The victim may have told a third person prior to the incident she wanted to have sexual intercourse with defendant. She voluntarily accompanied defendant to the bedroom. However, she consistently stated she never consented to perform oral sex on de*315fendant and had told him she did not want to do that type of act. It is undisputed defendant then took hold of her head and put his penis in her mouth. He was 23 years old, married, and a father. He had a prior juvenile conviction for indecent liberties with a minor. Defendant went to the victim’s house (she was a former neighbor) because he was “bored.” Defendant sought the victim out.

Where in the facts before the judge is there any basis to conclude there is a compelling reason to depart from the legislatively determined presumptive sentence based upon participation by the victim? The actual departure was not minimal. The departure sentence was less than a third of the presumptive sentence. The victim did not consent to the act and did not want it, and her “participation” was having her head held while defendant inserted his penis in her mouth. There simply is no legally sufficient basis for the departure sentence herein.

But this does not end the discussion. The sentencing judge’s gutter language and total disregard for his judicial role resulted in a sentencing that was a total farce.

The judge was veiy clear that he believed the presumptive sentence was far too high for any “blow job” by a 13-year-old girl. He stated the same act by a 40-year-old would be worth more of a penalty than for the act done by a 13-year-old. Apparently, the judge believed the degree of sexual satisfaction achieved by the perpetrator of the sexual crime was a factor to be considered at sentencing.

The judge also expressed his irritation at young girls in general who he perceived to be flaunting themselves and thereby causing men to have criminal charges filed against them, as he believed was evidenced by this and other cases he had heard involving different individuals. He obviously disliked the victim and what he thought she represented. The judge characterized his own comments as a “rant and rave” against the Kansas Sentencing Guidelines.

The judge was disciplined by the Commission on Judicial Qualifications for his handling of the sentencing hearing herein, upon *316the findings he violated Canon 2A and Canon 3B(4) of the Code of Judicial Conduct, which provide:

“Canon 2

“A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities

“A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciaiy.” Supreme Court Rule 601A (1999 Kan. Ct. R. Annot. 465).

“Canon 3

“A Judge Shall Perform, the Duties of Judicial Office Impartially and Diligently

“[B] (4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control.” Supreme Court Rule 601A (1999 Kan. Ct. R. Annot. 466).

Further, our Preamble to the Code of Judicial Conduct reiterates the importance of judicial decorum:

“Our legal system is based on the principle that an independent, fair and competent judiciaiy will interpret and apply the laws that govern us. The role of the judiciaiy is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.” Rule 601A (1999 Kan. Ct. R. Annot. 461).

Recently, in State v. Scales, 261 Kan. 734, 933 P.2d 737 (1997), in a unanimous opinion authored by Justice Davis on petition for review from the Court of Appeals, we vacated a trial court’s imposition of a maximum presumptive sentence due to judicial misconduct. Although the underlying facts of that case involved a judge’s ex parte communication with the victim’s family, a situation not involved here, our discussion about judicial decorum and conduct still applies and is equally applicable to the judicial misconduct here.

In Scales, the defendant appealed his sentence, alleging that it was imposed as a result of partiality, prejudice, oppression, or cor*317rupt motive and amounted to an abuse of discretion. While the Court of Appeals acknowledged that the trial court’s ex parte communication violated the Code of Judicial Conduct, it nonetheless concluded that the defendant had failed to prove an abuse of discretion. We disagreed, noting that “we need look no further than the nature of the hearing that took place upon sentencing to conclude that the proceeding was inherently unfair.” 261 Kan. At 738. While not all ex parte communications with a trial court require reversal, we held the communications in Scales“undermine any confidence we have in the impartiality of the sentencing proceeding.” 261 Kan. at 738. The judicial misconduct in the case before us here is far more egregious than that in Scales.

Impartiality is at the foundation of our criminal justice system and applies equally to both the State and the defendant. We quoted Justice Cardozo in Scales, as follows:

“Justice Cardozo emphasizes the importance of the appearance of impartiality: ‘One of die most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness.’ Cardozo, The Nature of die Judicial Process, p. 112 (1921), as quoted in Shaman, [Lubert & Alfini,] Judicial Conduct and Ethics § 3.01 ([2d ed.] 1995).” 261 Kan. at 739.

Returning to the source of the above quote, we find that Shaman also stated:

“Because a judge’s courtroom conduct symbolizes die law in action, a judge compromises the notion that die law is uniform and impartial in its application by failing to adhere to die dictates of those provisions of die Code dealing with a judge’s behavior in performing his or her adjudicative responsibilities, particularly tiiose of Canon 3B of the 1990 Model Code . . . .” Shaman, Lubert & Alfini, Judicial Conduct and Ethics § 3.01 (2d ed. 1995).

The judge’s tirade attacking and castigating the 13-year-old victim in this case, as well as the 14-year-old victim in an unrelated case heard the same day, usage of gutter language while trivializing defendant’s culpability, and challenging the legislative decision to severely punish criminals who have sexual relations with underage victims made a shambles of this proceeding and raised questions of his ability to apply the laws of this state in a fair and impartial manner. This court’s judicial duty is to strive to enhance and main*318tain confidence in our legal system. I believe the judge’s comments show partiality, prejudice, and oppression against female victims of sex crimes rarely seen in today’s courts. His appalling conduct vitiated the entire proceeding.

The only thing substantial and compelling in this case is the need to vacate the sentence imposed and to remand this case for re-sentencing before an impartial judge who will conduct the proceeding with judicial decorum, hear all relevant evidence, and make such findings as he or she may deem appropriate concerning whether a legally factual basis exists which compels a downward durational departure.

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