Last edited: January 03, 2005

Appeal Denied in Kansas Sodomy Case / Network, February 5, 2002

By Ann Rostow

SUMMARY: The Kansas Court of Appeals has upheld a criminal sodomy conviction and 17-year prison sentence for a teen-age boy who had consensual oral sex with another boy of nearly 15.

A three-judge panel of the Kansas Court of Appeals has upheld a criminal sodomy conviction, and a 17-year prison sentence, for a teen-age boy who had consensual oral sex with another boy of nearly 15.

Under Kansas law, heterosexual teens who are under 19 and within four years of each otherís age are not prosecuted under the same statutes that govern adult statutory rape. Instead, they are given a lighter sentence under a provision called the "Romeo and Juliet" law. That law, however, applies exclusively to heterosexual teens, and it did not cover the case of Matthew Limon.

Limon had just turned 18 in February 2000 when he had oral sex with a male schoolmate of 14 years, 11 months. If Limonís friend had been female, he would have earned a sentence in the range of 13 to 15 months.

But not only was Limon ineligible for the lenient terms of the Romeo and Juliet law, he also had a juvenile sex-crime record which threw him into a higher sentencing range. Without that history, he would have been facing a term of four or five years. Nonetheless, the harshness of his sentence has drawn particular attention to the case over the last year.

Acting as a friend of the court, the American Civil Liberties Union argued that the different standards for gay and straight teens violated the equal protection clauses of the U.S. and Kansas constitutions.

But in a 15-page ruling, the panel noted that the state of Kansas presently criminalizes sex acts for homosexuals under its sodomy law that are legal for heterosexuals. If the state sodomy law is presumptively valid, the court said, then the discrimination in the Romeo and Juliet law also passes the lowest legal standard of review.

The court devoted two pages to an analysis of the infamous 1986 U.S. Supreme Court case of Bowers v. Hardwick, to bolster its view that states have a constitutional right to make different laws governing gay and straight sexual conduct.

According to James Esseks, litigation director for the ACLUís Lesbian and Gay Rights Project and a co-author of the brief, the issue of sodomy reached the appellate level in the state of Kansas a few years ago but has yet to be addressed by the state supreme court. Kansas is one of five states that outlaws sex acts for gays only, arguably violating the equal protection clause as well as other constitutional ideas of justice.

Although Esseks thinks the Limon case may well be appealed to the Kansas high court, he said he will not be surprised if the high court declines to review it.

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