Imprisoned Teen Challenges Kansas ‘Romeo and Juliet’ Law
ABC News,
January 17, 2003
By Geraldine Sealey, ABCNews.com
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, Limon’s 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, Limon’s 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, he’s 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 he’s challenging," she said.
Today, the U.S. Supreme Court will decide whether to hear arguments in
Limon’s 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 it’s like to be in prison let alone
because it’s something about our identity," Lange said. "He feels
scared and upset. He hasn’t had an opportunity to live an adult life, or to
go out into the adult world."
Testing the ‘Romeo and Juliet’ 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 state’s 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 Limon’s 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 state’s criminal sodomy statute, which prohibits sodomy with a
child between 14 and 16 years of age, without regard to consent, the offender’s
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 nation’s HIV/AIDS cases.
Advocates and opponents of same-sex sodomy laws agree on one thing: The
court’s 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 we’ll 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. I’m hoping they’re concerned about
the disintegration of our moral culture. We’ll just have to see."
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