Court Weighs Harsher Sentence in Gay Underage Sex Case
The
Lawrence Journal-World, September 1, 2004
By John Hanna, Associated Press Writer
Topeka—The state can punish illegal underage sex more
harshly when it involves homosexual acts, even if the only goal is promoting
traditional sexual roles, an official told the Kansas Supreme Court on
Tuesday.
Deputy Atty. Gen. Jared Maag said legislators had such
broad latitude in setting policy that “any conceivable, rational basis”
would justify the different treatment.
Maag argued in favor of upholding a sentence of more than
17 years in prison for Matthew R. Limon, convicted of criminal sodomy for
having sex at age 18 with a 14-year-old boy in 2000.
Had the victim been a girl, Limon could have been
sentenced to one year and three months in prison under a 1999 law. His
attorneys argued the different treatment represents discrimination against
gays and lesbians—and is unconstitutional.
But Maag said the different treatment was acceptable if
legislators could argue there’s a rational reason—protecting public
health, protecting children or promoting traditional values.
“If you admit there’s a conceivable basis that’s at
least arguable, then that is enough to uphold the statute as
constitutional,” he said.
James Esseks, an American Civil Liberties Union attorney
representing Limon, said the state had “fanciful justifications” for the
harsher sentence.
Esseks said the state was basing its law on “private
prejudice,” which is constitutionally unacceptable.
“Homosexuality is not a mental disorder,” he said.
“There is nothing inherently harmful about it.”
After the hearing, Esseks said any reason for the
different treatment must be justified with “real-world facts.”
“These connections are so tenuous as to be arbitrary
and unconstitutional,” Esseks told the court.
Kansas law makes any sexual activity involving a person
under 16 illegal, regardless of the context. Also, Limon had two previous,
similar offenses on his record.
Limon’s attorneys note that had his victim been female,
the state’s 1999 “Romeo and Juliet” law would have applied. It
establishes lesser penalties for illegal sex when the partners’ ages are
within four years and one partner is under 19—and specifically applies only
when the partners are of the opposite sex.
The Kansas Court of Appeals rejected Limon’s appeal in
2002. Last year, the U.S. Supreme Court struck down a Texas law criminalizing
gay sex and returned Limon’s case to the state courts.
But in a 2-1 decision in January, the Kansas Court of
Appeals noted that the U.S. Supreme Court case involved consenting adults and
sided with the state again.
Limon then appealed the Kansas Supreme Court, which could
rule as early as Oct. 15.
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