Unprotected Sex
Johnson County Prosecutes a Man for Having Sex
The Pitch,
December 6, 2001
1701 Main, Kansas City, MO 64108
Fax: 816-756-0502
Email: pitch@pitch.com
By Kendrick Blackwood
Robert Rowe doesn’t regret getting the blow job. Even after serving 75
days in jail, spending money on an attorney, being forced to retire early and
enduring that humiliating day in court wearing orange, he doesn’t regret the
blow job.
"The deal was where it happened, and that was stupid," Rowe says.
"But had it been at his place or here, it still would have been
illegal."
Rowe got the blow job in a bathroom near Shelter No. 2 at Shawnee Mission
Park last April. That’s where a park police officer found the two men. By
the time the ranger arrived, Rowe says he was fully clothed. But the ranger
asked what was going on, and Rowe told him. Rowe was charged May 8 with
sodomy.
Prosecutors could have charged Rowe with "lewd and lascivious
behavior"—having sex or exposing genitalia in public. (Rowe has been
convicted of that, too, having shown his penis to an undercover cop at another
park bathroom on June 23, 2000.)
But this time prosecutors charged him under Kansas’ criminal sodomy law,
which forbids gay or lesbian sexual relations even in private and bans sex
between humans and animals. The law formerly applied to heterosexuals as well,
forbidding them from exchanging oral or anal favors. But in 1983, the Kansas
legislature changed the law, adding the words "members of the same
sex."
Rowe and his attorney, Darrell Smith, argue that the change singles out
homosexuals for prosecution and that the charge against Rowe violates his
constitutional right to equal protection under the law. They have appealed
Rowe’s conviction to the state appellate court.
The American Civil Liberties Union agrees. And Lisa Nathanson, local ACLU
legal director, believes Rowe’s case may be enough to overturn the law. Only
Kansas, Missouri, Texas and Oklahoma have sodomy laws that distinguish between
heterosexual and homosexual acts.
"It’s a very direct challenge, more direct than the facts usually
allow," Nathanson says.
Another challenge to Kansas law involves eighteen-year-old Matthew Limon,
who fellated a fourteen-year-old boy at the Miami County, Kansas, school for
developmentally disabled youth where they both live. Limon was sentenced to
seventeen years in prison for having sex with a minor. But if Limon had
instead had oral sex with a fourteen-year-old girl, his potential penalty
would have maxed out at just fifteen months under the state’s "Romeo
and Juliet" law. That law allows a reduced penalty for having consensual
oral sex with a fourteen- or fifteen-year-old person if the offender is
younger than twenty—but only when the activity involves "members of the
opposite sex." Limon’s attorneys recently told the state appellate
court that this violates "equal protection," saying there should be
a "Romeo and Mercutio" provision as well. But Limon’s lawyers’
point is clouded by the stomach-churning image of an eighteen-year-old
fondling a fourteen-year-old.
Rowe’s case doesn’t carry such baggage: Lawyers won’t have to argue
over age of consent. As Rowe admitted to the park ranger, he went out to walk
his dog and stopped to urinate at the park bathroom, where he saw Roger
Joiner. Rowe says he and Joiner had had sex before. Joiner, who was not
charged, testified for the prosecution in Rowe’s district court trial.
Still, Rowe’s case carries some public-relations baggage: Most taxpayers
don’t want park bathrooms to be sex venues.
"We try not to make it just a gay thing," says Johnson County
District Attorney Paul Morrison. "It’s a public-health issue. It’s a
making-parks-friendly-for-families issue."
Morrison says that Kansas’ sodomy law provided the most appropriate
charge in this case. Had Rowe’s partner been a woman, Morrison would have
had to rely on prosecuting for lewd and lascivious behavior, arguing that the
bathroom is a public enough place to warrant the charge. Both are Class B
misdemeanors, which carry penalties of up to six months in jail.
"I don’t think it ought to be a crime, necessarily, to have
homosexual sex at all," Morrison says. "We don’t investigate or
prosecute consensual cases of sodomy except in this context."
Morrison says he has no intention of bashing down the bedroom doors of gay
couples in order to make cases. But he could, which is why the law needs to be
changed, Rowe argues.
Rowe says he will appeal the case all the way to the U.S. Supreme Court if
he has to. "This is my opportunity to do something for my brothers and
sisters in the gay community," he says.
Morrison says his office will defend the conviction because it is
ultimately up to the Kansas Legislature to decide which laws are appropriate.
Rowe, an avuncular suburbanite with white hair, seems an unlikely
gay-rights champion. Deeply closeted for most of his life, Rowe has struggled
with his decision to fight. "I feel like I’m on stage with the
spotlight shining down."
Now 54, Rowe was gay long before being gay was the subject of television
sitcoms, before Kansas City had much of a gay bar scene, before some
neighborhoods were known to be gay-friendly, before there was local gay pride.
In the 1960s and ‘70s, parks were about the only place to meet other men
interested in homosexual encounters. Rowe, who grew up in Kansas City, Kansas,
admits he was a frequent visitor. "Back then, it was pretty much the only
option," Rowe says, ticking off his former haunts—Liberty Memorial,
Penn Valley Park, Rosedale Park, Shawnee Mission Park and Antioch Park.
Rowe graduated from Rockhurst College and worked for Montgomery Ward for a
decade before he was asked to quit in 1974. "Quite frankly, I was fired
from that job for being gay.... They said it was because of my
mannerisms," Rowe says. "I wasn’t about to fight it."
Rowe then spent 27 years working for Social Security, mostly deciding
whether applicants qualified for benefits. (His legal troubles cost him too
many days from work, pushing him to take the early retirement he’d already
been considering.) In recent years, he confronted his park habit and began a
twelve-step sexual-addiction treatment program. Now he’s trying to avoid
liaisons like the one that landed him in jail.
"I don’t practice the lifestyle I used to. I definitely do not
now," Rowe says. "I found there are better places to meet people
than the parks."
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