Last edited: February 01, 2004

Kansas Court Upholds Harsher Penalties for Gay Sex

The Advocate, January 31, 2004

Kansas can punish someone more harshly for having sex with a minor if the minor is of the same sex, the state court of appeals ruled Friday. A three-judge panel, splitting 2-1, rejected the appeal of Matthew R. Limon, sentenced to more than 17 years in prison for having sex with an underage boy in 2000. Had Limon engaged in sex with an underage girl, he could have been sentenced to one year and three months in prison.

The American Civil Liberties Union, which represented Limon, and other gay rights activists had hoped the court would declare that the difference in sentencing represented unconstitutional discrimination against gays and lesbians.

Gay rights activists condemned the ruling as discriminatory. “All people should be equal in the eyes of the law, yet this decision upholds penalties that are designed to target gay and lesbian people simply to show disapproval,” said Human Rights Campaign president Cheryl Jacques. “As the Supreme Court beautifully articulated in Lawrence v. Texas, [which decriminalized gay sex between consenting adults,] mere disapproval is never sufficient reason to treat people differently simply for being gay. We are hopeful that this case will be correctly decided by the higher courts.”

The ACLU and gay rights activists had pinned their hopes on Lawrence, the June decision that struck down all the nation’s remaining sodomy laws, including one in Kansas.

However, the Kansas appeals panel said that decision did not apply to sex acts involving children. “The question we must address is whether the legislature can punish those adults who engage in heterosexual sodomy with a child less severely than those adults who engage in homosexual sodomy with a child. The answer is yes,” appeals judge Henry W. Green Jr., writing for the majority, said. “The legislature could have rationally determined that heterosexual sodomy between a child and an adult could be put in a class by itself and be dealt with differently than homosexual sodomy between a child and adult,” Green wrote.

Attorney General Phill Kline had made the same argument and saw the appeals panel’s ruling as a big victory. He also had suggested that if the ACLU were to succeed in overturning Limon’s sentence, it could strengthen a future attack on a Kansas law banning same-sex marriages. “I would say what I’m most pleased with is the court’s rejection with the broad ACLU arguments,” Kline said during an interview.

Limon’s conviction stems from acts with a 14-year-old boy. Both were residents of a Paola group home for the developmentally disabled. Limon was 18 at the time. The appeals court also rejected Limon’s challenge in February 2002, but last June the U.S. Supreme Court returned the case to Kansas, resulting in the December rehearing before the appeals court.

Kansas law makes any sexual activity involving a person under 16 illegal, regardless of context. The attorney general’s office made much of Limon having two previous, similar offenses on his record, suggesting they helped justify his lengthy sentence. Limon could have received a much lighter sentence had he or the 14-year-old boy, identified only as M.A.R., been female, because a 1999 statute, known as the “Romeo and Juliet” law, provides lesser penalties for consensual sex when one partner is 19 or under and the other partner’s age is within four years.

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