Last edited: December 18, 2004

Imprisoned Teen Challenges Kansas ĎRomeo and Julietí Law

ABC News, January 17, 2003

By Geraldine Sealey,

Matthew Limon was one week past his 18th birthday when he performed oral sex on a younger male teenager in the residential center for developmentally disabled youth where they both lived.

By all accounts, there was no violence or aggression involved. Because the younger teen was not even 15, however, Limonís actions were considered criminal sodomy by the state of Kansas.

Even if Limon had performed sodomy on a girl, he would have been in trouble. But he and his family were shocked to find out just how much trouble he was in. Under Kansas law, Limonís actions earned him a 17-year prison sentence. If he had performed the same sex act on a girl, his sentence would have been about 15 months.

Now, heís in the Ellsworth Correctional Facility and will be jailed until he is 35; once he gets out, he must register as a sex offender.

Limon, who has already served three years of his term, is not challenging whether Kansas has the right to punish older teens for having sex with younger teens, says his lawyer, ACLU staff attorney Tamara Lange. "The unfairness in the Kansas rules is what heís challenging," she said.

Today, the U.S. Supreme Court will decide whether to hear arguments in Limonís case.

The court has already agreed to hear a challenge to a Texas law that hands out stiffer penalties to gays than heterosexuals for committing sodomy. With this case, the court will take another look at its 1986 decision in Bowers vs. Hardwick that said the Constitution did not protect the rights of gays and lesbians to engage in sex in the privacy of their homes.

If the court also agrees to hear the Limon case, the decisions in both cases could amount to the most monumental rulings the high court has issued in the area of gay rights certainly since Bowers.

While rulings in either case could have significant consequences for the legal status of gays and lesbians in the United States, Limon has much more at stake than the plaintiffs in the Texas case.

"Most of us cannot imagine what itís like to be in prison let alone because itís something about our identity," Lange said. "He feels scared and upset. He hasnít had an opportunity to live an adult life, or to go out into the adult world."

Testing the ĎRomeo and Julietí Law

In Lawrence vs. Texas, two gay men say the state deprived them of privacy rights and equal protection under the law when they were arrested in 1998 for having sex in a Houston home.

A neighbor had reported a "weapons disturbance" at the home of John G. Lawrence, and when police arrived they only found two men having sex. Lawrence and another man, Tyron Garner, were held overnight in jail and later fined $200 each for violating the stateís Homosexual Conduct law. The neighbor was later convicted of filing a false police report.

As it stands, though, Limon will have to stay in jail until he is 35 years old if the high court does not overturn the Kansas law that put him there.

At issue in Limonís case is how Kansas treats gay and heterosexual behavior differently using two different statutes. The "Romeo and Juliet" law provides for penalties when a teen younger than 19 engages in voluntary sexual intercourse, sodomy or lewd touching with a teen between the ages of 14 and 16, provided the teens are of the opposite sex.

The purpose of the Romeo and Juliet law, according to the Kansas Court of Appeals, was to differentiate sex between a full-fledged adult and a young teen from sex between teens of different ages. But the legislature decided not to make the statute applicable to gay teenagers.

Thus, teens of the same gender engaging in the same sexual behavior fall under the stateís criminal sodomy statute, which prohibits sodomy with a child between 14 and 16 years of age, without regard to consent, the offenderís age, or the gender of the participants.

Penalties far Different by Sexual Orientation

The two statutes provide for dramatically different penalties. Under the Romeo and Juliet law, first and second offenses receive probation, and a third offense carries a maximum sentence of 15 months imprisonment.

Under the criminal sodomy law that Limon was convicted under, a first offense carries a sentence of 55 to 61 months; a second offense gets 89 to 100 months, and a third offense gets 206 to 228 months. Because criminal sodomy is a sexually violent crime under state law, violators must register as sex offenders.

Most states have some kind of "Romeo and Juliet" law, legal experts say, but most of those statutes are neutral on the issue of sexual orientation. Only Kansas and Texas have laws that treat gay teens different from straight teens.

Advocates of same-sex sodomy laws say the states have every right to differentiate between homosexual and heterosexual conduct under the law.

"We feel sympathy for a young person facing a long prison sentence for this kind of act, but should that justify overruling a principle of law that has benefits for society?" said Scott Lively, director of the Pro-Family Law Center in Citrus Heights, Calif.

Defending Same-Sex Sodomy Laws

States have the prerogative to make a moral distinction between homosexual and heterosexual conduct, said Lively, who co-authored a brief in the Lawrence case in support of same-sex sodomy laws. Gay individuals have no grounds for an equal protection challenge because they are not similarly situated as heterosexuals, he said.

Further, Lively noted the disproportionate effect of sodomy by gays and heterosexuals. "Same-sex sodomy carries a much bigger social price tag on AIDS alone," he said. He noted that gay men make up a disproportionate number of the nationís HIV/AIDS cases.

Advocates and opponents of same-sex sodomy laws agree on one thing: The courtís ruling on the issue could be a milestone in how sexual orientation and traditional views of marriage and family are treated under the law.

The justices could decide whether sexual orientation deserves special scrutiny under the equal protection clause of the 14th Amendment. "The Supreme Court has not reached the question of whether sexual orientation warrants strict or intermediate scrutiny. Some have argued it deserves heightened scrutiny," said Ed Stein, a professor of sexual orientation, gender and the law at Benjamin N. Cardozo School of Law in New York.

Advocates of traditional marriage, like Lively, hope the court will decide that states should still have the option to regulate sodomy.

"In the end, the social policy weíll hopefully be operating by is one that encourages marriage and discourages promiscuity in every form," he said. "Hopefully the Supreme Court will lead the way in restoring this perspective of marriage and sexuality. Iím hoping theyíre concerned about the disintegration of our moral culture. Weíll just have to see."

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