Last edited: February 14, 2005

Sodomy Law, Man’s Conviction Upheld

Kansas City Star, January 23, 2003

By Tony Rizzo

If Robert T. Rowe’s partner had been a woman, he still might have faced a criminal charge.

But he was arrested in a Shawnee Mission Park bathroom with another man, and for that he was charged with criminal sodomy.

Rowe and his attorney, Darrell Smith, challenged the fairness of the same-sex sodomy law—one of four in the country—but the Kansas Court of Appeals recently upheld the law and Rowe’s conviction. Smith said he and Rowe were asking the Kansas Supreme Court to review the case.

They also are watching the U.S. Supreme Court, which will be taking up a similar Texas law. Texas, Oklahoma, Missouri and Kansas are the four states that outlaw same-sex sodomy.

Rowe, 55, was charged in April 2001 when a police officer found him and another man engaging in oral sex. A Johnson County District Court judge found Rowe guilty of the misdemeanor charge and sentenced him to 120 days in jail.

He had previously been convicted of the same crime and had received a suspended sentence.

In his appeal, Smith argued that Rowe’s right to equal protection of the law had been violated because of his sexual orientation.

Smith had to fight an uphill battle, because in reviewing such a claim, appellate courts were required to presume that the law was constitutional.

"It is the court’s duty to uphold the statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done," the court found in an earlier ruling.

In assessing Rowe’s case, the appellate court cited the various levels of scrutiny that the U.S. Supreme Court has established for persons making equal protection claims.

Some factors, such as a person’s race or gender, have been afforded a heightened level of scrutiny that sexual orientation has not, the court noted.

Those heightened levels place persons in what are called "suspect" or "quasi-suspect" classes.

Although the Kansas Supreme Court has never addressed that issue, the appellate court noted that "the majority of the federal courts that have considered whether homosexuals are a suspect or a quasi-suspect class have rejected either classification for homosexuals."

In rejecting Rowe’s appeal, the court found that he failed to show that the criminal sodomy law was "not rationally related to a legitimate state interest."

Johnson County authorities have cited public health concerns in periodic sweeps of county parks when public sexual activity was occurring.

District Attorney Paul Morrison, whose office prosecuted Rowe, said people have been arrested for heterosexual and homosexual activity in public parks.

In 1994, for instance, a man and woman were arrested and charged with lewd and lascivious behavior after a park ranger saw them having sex on a rented paddle boat on the lake at Shawnee Mission Park.

The appellate court did raise one issue with the Kansas sodomy law that could affect future rulings.

Judge Jerry G. Elliott noted in a concurring opinion that if Rowe’s gender had been raised as an issue, the court could have looked at it with heightened scrutiny.

"To me, the gender classification issue presents more interesting and closer questions which must await adjudication in a case where the argument/issue is properly before the court," Elliott wrote.

  • To reach Tony Rizzo, Johnson County court reporter, call (816) 234-7713 or send e-mail to

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