Last edited: February 01, 2004

Kansas Court Backs Harsher Sodomy Sentence

Washington Post, January 30, 2003

By John Hanna

TOPEKA, Kan.—Kansas can punish illegal sex with children more harshly when it involves homosexual acts, the state Court of Appeals ruled Friday in a case being watched by national advocacy groups.

Judge Henry W. Green Jr. wrote in the 2-1 decision that legislators could justify differing penalties for homosexual versus heterosexual sodomy in plenty of ways, including greater health risks or an attempt to “encourage and preserve the traditional sexual mores of society.”

The ruling by Kansas’ second-highest court rejected an appeal by Matthew R. Limon, who was sentenced to more than 17 years in prison for having sex when he was 18 with a 14-year-old boy in 2000. He was convicted of sodomy.

Had Limon’s partner been an underage girl, he could have been convicted of unlawful sex under the state’s “Romeo and Juliet” law and sentenced at most to one year and three months in prison.

The American Civil Liberties Union, which represented Limon, had argued that the differing sentences represented unconstitutional discrimination against gays, especially since the U.S. Supreme Court in June struck down state laws, including one in Kansas, criminalizing gay sex between consenting adults.

The appeals panel said Friday that the June decision did not apply to sex acts involving children.

The panel said lawmakers could have several reasons for setting up differing sodomy penalties, just as they can justify making it illegal to furnish alcohol to children but not to adults.

“The Legislature could have reasonably determined that to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans, it would encourage and preserve the traditional sexual mores of society,” Green wrote.

In addition, he wrote, “Medical literature is replete with articles suggesting that certain health risks are more generally associated with homosexual activity than heterosexual activity.”

The dissenting judge, G. Joseph Pierron Jr., said the state had no rational basis for the differences in sentencing.

“We grant deference, not blind acquiescence, to legislative findings,” Pierron wrote. “This blatantly discriminatory sentencing provision does not live up to American standards of equal justice.”

Kansas law makes any sexual activity involving a person under 16 illegal. The 1999 “Romeo and Juliet” law, however, provides lesser penalties for consensual sex when one partner is 19 or under and the other partner’s age is within four years.

Kansas Attorney General Phill Kline, who had suggested that a ruling favoring Limon could strengthen a future attack on the state’s ban on gay marriage, called Friday’s ruling a big victory.

Tamara Lange, an ACLU attorney representing Limon, said she planned to appeal to the Kansas Supreme Court. “This decision is not a victory for morality or a victory for Kansas,” she said. “It’s a victory for prejudice and fear.”

Susan Sommer, an attorney for the gay rights group Lambda Legal who was involved in the case that led to June’s Supreme Court ruling, said the Kansas court was “deaf to the spirit and teaching” of that ruling.

“This is an opinion that reflects an archaic set of attitudes about homosexuality that the U.S. Supreme Court completely transcended,” she said.

Limon and the boy, identified in court only as M.A.R., lived at a group home for the developmentally disabled.

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