Last edited: January 01, 2005

Case Tests State Sex Law

Ruling: Man Faces Longer Sentence for Consensual Same-Sex Sodomy

Topeka Capital-Journal, November 18, 2001
616 SE Jefferson Street, Topeka, KS 66607
Fax: 785-295-1230

By John Hanna, The Associated Press

Matthew Limon might seem the unlikely subject of what some attorneys see as an important social, political and legal cause.

But none of those attorneys defend the behavior that put Limon in prison, a sexual act with an underage boy. Rather, they are attacking how Kansas law treated his case from Miami County compared to those of similar sex offenders.

A judge sentenced Limon to 17 years and two months in prison for criminal sodomy, following guidelines in Kansas law. Had Limon or the boy been female, the maximum sentence would have been one year and three months.

That difference pulled the American Civil Liberties Union and the DKT Liberty Project into Limonís case. As far as their attorneys know, it is the first of its kind in the nation to reach an appellate court, making it a possible test case for gay rights advocates.

A three-member Kansas Court of Appeals panel plans to hear arguments in Limonís case at 9 a.m. Tuesday at the Kansas Judicial Center in Topeka. The court could issue a decision by early next year.

The civil liberties groups are asking the appellate court to declare that Limonís tougher sentence violates his right to equal protection under the law and to strike down the provision of Kansas law that led to the longer prison term.

The Liberty Project views Limonís sentence as a case of gender-based discrimination. The ACLUís Lesbian and Gay Rights Project in New York views it as a case of discrimination based on sexual orientation. Both believe the state and federal constitutions donít allow such bias, a point the state disputes.

The two groups also claim legislators consciously permitted the different treatment of similar crimes, based on whether they involve gay or straight sex acts. Rep. Mike OíNeal, chairman of the Kansas House Judiciary Committee, said they are right. He said legislators simply continued the stateís long-standing policy of not expressing approval for same-sex relationships. If Kansas is part of a "look the other way society," many of its citizens arenít ready to go against their religious teachings, he said.

"The history really is Biblically based," said OíNeal, R-Hutchinson. "Kansas has kind of consistently gone back to that biblical reference."

In 1999 and 2000, Limon was a resident of the Lakemary Center, a school for developmentally disabled young people in Paola. In February 2000, after he had turned 18, Limon performed a sex act with another boy, identified only as M.A.R., who was one month shy of his 15th birthday. Initially, their encounter was consensual.

The year before the incident, legislators had enacted what became known as the "Romeo and Juliet" law. Named for Shakespeareís fictional young lovers, its goal was to separate consensual teen-age sexual relationships from cases in which older adults exploited young children.

It lessened the penalties for unlawful but consensual sexual relations where one person is under 19 and the other person is between 14 and 16, if their ages are less than four years apart.

The new law also ended the requirement that the people convicted in such cases register as sex offenders with local law enforcement officials after their prison terms end.

However, the law applies only when the young sexual partners are of the opposite sex.

Limon was charged and convicted by a judge under an older criminal sodomy law. His juvenile record contained a similar offense from 1998, making his sentence in the latest case more severe.

The ACLU is researching laws in other states. So far, it has identified four others with laws that could have a similar result under the same circumstances: Alabama, California, Texas and Virginia.

"When you read the text of the law, the only conclusion you can come to is that the Legislature thinks gays should be punished more severely than straight people," said Tamara Lange, an ACLU attorney in New York.

In defending Limonís sentence, Assistant Miami County Attorney Amy Harth told the Court of Appeals that the state is trying to protect children. She also said the U.S. Supreme Court has allowed such different treatment even if it seems unwise or its rationale seems tenuous.

Limonís attorney, David Estes, an assistant appellate defender, conceded in documents that the U.S. Supreme Court hasnít declared gays and lesbians a class that must receive the highest protection against different legal treatment.

Nevertheless, he said the Kansas Court of Appeals should do so.

"Homophobia is not a compelling government interest," he wrote.

But OíNeal said the U.S. Supreme Court probably will have to settle the issue.

And he said legislators didnít consider a "Romeo and Juliet" exception for same-sex partners because it would have required them to rethink the criminal sodomy law, which prohibits sex acts between Kansans of the same gender, even consenting adults.

He noted that legislators declined to make changes in 1992, when they revised sentencing laws, and passed a bill re-emphasizing the stateís ban on same-sex marriages in 1996.

"This distinction, the same-sex, opposite-sex distinction, has been on the books since our criminal code was enacted," OíNeal said. "We didnít break any new ground. That certainly was the intent."

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