Case Tests State Sex Law
Ruling: Man Faces Longer Sentence for Consensual Same-Sex Sodomy
Topeka Capital-Journal,
November 18, 2001
616 SE Jefferson Street, Topeka, KS 66607
Fax: 785-295-1230
Email: letters@cjnetworks.com
http://cjonline.com/stories/111801/kan_sexlaw.shtml
By John Hanna, The Associated Press
Matthew Limon might seem the unlikely subject of what some attorneys see as
an important social, political and legal cause.
But none of those attorneys defend the behavior that put Limon in prison, a
sexual act with an underage boy. Rather, they are attacking how Kansas law
treated his case from Miami County compared to those of similar sex offenders.
A judge sentenced Limon to 17 years and two months in prison for criminal
sodomy, following guidelines in Kansas law. Had Limon or the boy been female,
the maximum sentence would have been one year and three months.
That difference pulled the American Civil Liberties Union and the DKT
Liberty Project into Limon’s case. As far as their attorneys know, it is the
first of its kind in the nation to reach an appellate court, making it a
possible test case for gay rights advocates.
A three-member Kansas Court of Appeals panel plans to hear arguments in
Limon’s case at 9 a.m. Tuesday at the Kansas Judicial Center in Topeka. The
court could issue a decision by early next year.
The civil liberties groups are asking the appellate court to declare that
Limon’s tougher sentence violates his right to equal protection under the
law and to strike down the provision of Kansas law that led to the longer
prison term.
The Liberty Project views Limon’s sentence as a case of gender-based
discrimination. The ACLU’s Lesbian and Gay Rights Project in New York views
it as a case of discrimination based on sexual orientation. Both believe the
state and federal constitutions don’t allow such bias, a point the state
disputes.
The two groups also claim legislators consciously permitted the different
treatment of similar crimes, based on whether they involve gay or straight sex
acts. Rep. Mike O’Neal, chairman of the Kansas House Judiciary Committee,
said they are right. He said legislators simply continued the state’s
long-standing policy of not expressing approval for same-sex relationships. If
Kansas is part of a "look the other way society," many of its
citizens aren’t ready to go against their religious teachings, he said.
"The history really is Biblically based," said O’Neal,
R-Hutchinson. "Kansas has kind of consistently gone back to that biblical
reference."
In 1999 and 2000, Limon was a resident of the Lakemary Center, a school for
developmentally disabled young people in Paola. In February 2000, after he had
turned 18, Limon performed a sex act with another boy, identified only as
M.A.R., who was one month shy of his 15th birthday. Initially, their encounter
was consensual.
The year before the incident, legislators had enacted what became known as
the "Romeo and Juliet" law. Named for Shakespeare’s fictional
young lovers, its goal was to separate consensual teen-age sexual
relationships from cases in which older adults exploited young children.
It lessened the penalties for unlawful but consensual sexual relations
where one person is under 19 and the other person is between 14 and 16, if
their ages are less than four years apart.
The new law also ended the requirement that the people convicted in such
cases register as sex offenders with local law enforcement officials after
their prison terms end.
However, the law applies only when the young sexual partners are of the
opposite sex.
Limon was charged and convicted by a judge under an older criminal sodomy
law. His juvenile record contained a similar offense from 1998, making his
sentence in the latest case more severe.
The ACLU is researching laws in other states. So far, it has identified
four others with laws that could have a similar result under the same
circumstances: Alabama, California, Texas and Virginia.
"When you read the text of the law, the only conclusion you can come
to is that the Legislature thinks gays should be punished more severely than
straight people," said Tamara Lange, an ACLU attorney in New York.
In defending Limon’s sentence, Assistant Miami County Attorney Amy Harth
told the Court of Appeals that the state is trying to protect children. She
also said the U.S. Supreme Court has allowed such different treatment even if
it seems unwise or its rationale seems tenuous.
Limon’s attorney, David Estes, an assistant appellate defender, conceded
in documents that the U.S. Supreme Court hasn’t declared gays and lesbians a
class that must receive the highest protection against different legal
treatment.
Nevertheless, he said the Kansas Court of Appeals should do so.
"Homophobia is not a compelling government interest," he wrote.
But O’Neal said the U.S. Supreme Court probably will have to settle the
issue.
And he said legislators didn’t consider a "Romeo and Juliet"
exception for same-sex partners because it would have required them to rethink
the criminal sodomy law, which prohibits sex acts between Kansans of the same
gender, even consenting adults.
He noted that legislators declined to make changes in 1992, when they
revised sentencing laws, and passed a bill re-emphasizing the state’s ban on
same-sex marriages in 1996.
"This distinction, the same-sex, opposite-sex distinction, has been on
the books since our criminal code was enacted," O’Neal said. "We
didn’t break any new ground. That certainly was the intent."
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