[SimeyTheLimey]

I've written about this case before and about how patently unconstitutional this Kansas law was, and about how unjust the sentence was. Here's an update that has made my day. Three cheers for the Kansas Supreme Court! And yes, three cheers for the ACLU.


Washington Post.

TOPEKA, Kan. -- The Kansas Supreme Court on Friday unanimously struck down a state law that punished underage sex more severely if it involved homosexual acts, saying "moral disapproval" of such conduct is not enough to justify the different treatment.

In a case closely watched by national groups on all sides of the gay rights debate, the high court said the law "suggests animus toward teenagers who engage in homosexual sex."

Gay rights groups praised the ruling, while conservatives bitterly complained that the court intruded on the Legislature's authority to make the laws.

The case involved an 18-year-old man, Matthew R. Limon, who was found guilty in 2000 of performing a sex act on a 14-year-old boy and was sentenced to 17 years in prison. Had one of them been a girl, state law would have dictated a maximum sentence of 15 months.

The high court ordered that Limon be resentenced as if the law treated illegal gay sex and illegal straight sex the same. He has already served more than five years.

Limon's lawyer, James Esseks of the American Civil Liberties Union's Lesbian and Gay Rights Project, said: "We are very happy that Matthew will soon be getting out of prison. We are sorry there is no way to make up for the extra four years he spent in prison simply because he is gay."

Kansas Attorney General Phill Kline said in a statement that he does not plan to appeal.

Just to clarify something. The issue isn't that he was convicted for sex with a minor. I don't have a problem with that as long as the law is enforced neutrally. But this statute was on its face in violation of the equal protection clause. Having sex with a minor of the same sex does not justify a 17 year sentence when the same act with a minor of the opposite sex would only get 15 months. I'm glad Kansas now recognizes that fact.

[lurkalot]

I agree with your reasons for posting this and with the sound reasoning of the new judgment. Brilliant that Lawrence keeps reverberating through the U.S. legal system. Equality is a right after all. Good news.

Edit: Direct Link for the opinion.

[dcmacdaddy]

Wow! I didn't think a state could/would willfully enact legislation that
was so blatantly discriminatory to a whole class of individuals, but Kansas did.

I hadn't heard of this case before but this IS good news, very good news.

[lurkalot]

"Mathew Staver, attorney for the conservative Orlando, Fla.-based Liberty Counsel, said the different treatment was justified by the state's interest in protecting children and families. He also said the court does not have the right to rewrite the statute.
"That's a legislative function," he said. "This is clearly a sign of an activist court system."WP

What a profound misunderstanding of the function of the court. The man should be disbarred.

[Railroader]

Having sex with anyone underage is a serious crime. It doesn't matter what the orientation is. The law was probably originally written to appease a certain political group at the time. Political grandstanding at the time.

[SimeyTheLimey]

Originally Posted by dcmacdaddy

Wow! I didn't think a state could/would willfully enact legislation that
was so blatantly discriminatory to a whole class of individuals, but Kansas did.

I hadn't heard of this case before but this IS good news, very good news.

To be fair, it is possible this was an oversight, but one that nobody took much trouble to correct even though the inequality was plain on the face of the statute, and one that the state tried hard to defend. The Romeo and Juliet law in Kansas is like the ones that applies in many states. It was created as an exception to the general laws criminalizing sex between adults and minors. The Romeo and Juliet law says that if the adult and the minor are within a certain age range of each other, the sentence is mitigated. The problem was that this mitigation statute only applied if a male-female couple was involved. If the couple was male-male, the adult male got the full savagery of the sentence when a young male who had sex with a female of the same age wouldn't.

The reason this could have been an oversight is historical. A lot of those old rape statutes simply assume that the person raped is a female, and that the rapist is a male. Indeed, at common law, rape or carnal knowledge could only be committed against a female and could only be committed by a male. States have now changed those laws so that males can be rape victims and females can be rapists. So the problem was that Kansas updated its statutory rape statute so it could apply when the victim was male, but failed to update its Romeo and Juliet statute at the same time. Or possibly it subsequently wrote the Romeo and Juliet law in an old-fashioned way. Maybe that was deliberate, maybe not.

However, where Kansas made its discriminatory intent clear was in trying to defend the exception to the exception on the basis of hostility to homosexuals. You simply can't do that after a supreme court case called Romer v. Evans. The Kansas legislature should simply have amended the statute to apply to both genders equally, and to apply equally in same-sex situations. However, that's now unnecessary because the Kansas Supreme Court has simply stricken the unconstitutional language so that the law applies to everyone equally.

Edit: on reflection, however, the fact that all it took to make the statute constitutional was to delete the words "and are members of the opposite sex" makes me suspicious. That little phrase does make it more likely in my mind that this wasn't just an historical oversight. It seems to show awareness that the people involved might not be members of the opposite sex, and an intent to exclude them from the law if they are. If so, that is unconstitututional animus plain and simple.

Edit to my edit. I just found out that the Romeo and Juliet statute was passed in 1999. That clinches it. This was no historical oversight. It was deliberate discrimination against homosexuals.

[OldManMac]

One more step in the correct direction. Good news!

[BRussell]

I'm going to play devil's advocate here (mainly because I enjoy disagreeing with Simey ). Should these laws really be sex-neutral? What about the example of an older woman having sex with a young boy. Is that really the same as an older man with a young girl? I doubt it. I could also see a case being made that same-sex might be different from opposite-sex. For example, we know that pedophiles are more likely to choose young boys than girls, whereas run-of-the-mill child molesters are more likely to choose girls. I'm not willing to say for sure that one is worse than the other, but I'm not sure that it should be an equal protection issue.

I also have to question the basis for these "Romeo & Juliet" laws, which I presume make it less of a crime if a couple is close in age, even if one is underage. I'm sure it's not the same as an older man molesting a young child, but on the other hand, my understanding is that many teen pregnancies result from exactly these kinds of "relationships," where an 18-year-old gets a 14-year-old to have sex with him. I'm not sure we should see that as a lesser crime than a 40-year-old and a 14-year-old.

[SimeyTheLimey]

A couple of brief thoughts. First of all, the way this works constitutionally is that equal protection analysis kicks in whenever you have a law that systematically discriminates. That sets up a presumption of unconstitutionality that the state then has to overcome. How much of a showing the state needs depends on who exactly it is who is being discriminated against. This is what people mean by the standard of review.

The highest standard of review applies to race. There is a lower intermediate standard of review that is generally said to apply to gender. The lowest and most deferential (by which I mean where the courts are least likely to overturn a statute) applies to everything else. That is the standard of review that applies to this case. But there is still a burden to overcome.

Essentially, in a case caller Romer v. Evans, which came out before this statute was passed, the Supreme Court said that just disliking gays isn't enough of a reason to use to justify a discriminatory statute. In Romer, and in this case, the state has failed to come up with anything other than simple dislike for gays, and thus the statute is unconstitutional. I realize that you are playing Devil's Advocate, but essentially what you are saying is that on the basis of no evidence other than a gut feeling, consensual (or at least non-forcible) sex between minors and adults (which is what we are talking about) is somehow worse in a same-sex context than in an opposite. I don't know that there is any evidence for that, but apparently Kansas here tried to argue it, and failed to come up with any credible evidence other than a set of vague gut-feeling policies that boiled down to the Kansas legislature being very unsympathetic to a minority. That's just not enough, and it is exactly the kind of abuse of a minority that the equal protection clause exists to defend against.

As for gay male pedophiles targeting males rather than females -- I'm afraid my answer is "Duh!" Of course they do, and they should be punished for it. Nobody here is arguing for legalization. All that is being said is that you should simply treat all pedophiles the same, whether they are gay men targeting boys, or heterosexual men targeting (and possibly impregnating) girls, or the equivalent offenses by women. The conduct is the same, and so should be the law that outlaws the conduct.

On Romeo and Juliet statutes in general, they aren't all that controversial in principle. Basically, they take the edge off what otherwise can be a rather arbitrary bright legal line between adulthood and minority. No jurisdiction that I know criminalizes consensual sex between two minors. But the day that one of those minors turns 18, it becomes a crime. A bright line is probably the only way to handle it, but it it can be harsh in real life situations with real relationships between young people who in reality mature at different rates. These laws, which many states have, take the edge off a bit. It's still a crime, but it recognizes that an 18 year old having consensual sex with a 15 year old isn't quite the same as a 40 year old having consensual sex with a 15 year old. Or to take the facts of this case, a 14 year old had sex apparently several times with a 17 year old, and then once again with the same boy one week after his 18th birthday. That's the crime for which the 18 year old was sentenced to seventeen years in prison, rather than the 15 months he would have got if he was straight. That strikes me as being both hugely disproportionate, and discriminatory.

[BRussell]

I have no idea what the motivation was behind the Kansas law (though it's pretty easy to conjecture), nor what they argued in court. But I'm suggesting one possible reason for this type of discrimination, and I think you may have misunderstood my point. We know that true pedophiles are more likely to have boy victims, whereas regular, what are called "situational" child molesters tend to have girl victims. Situational child molesters could be either straight or gay with their adult relationships, but I think it's wrong to consider true pedophiles to be either straight or gay. Their orientation, if you want to call it that, is usually toward ~12 year old boys. Michael Jackson, assuming he's guilty, fits the profile perfectly. Not gay, but a pedophile. If this portrayal of pedophilia is accurate, then that could be a reason to be more careful about same-sex Romeos than opposite-sex ones: True pedophiles are probably more likely to persist in their behavior than situational child molesters.

I don't really think it applies here, because you don't know if someone is a true pedophile until they're older, so it's really a moot point when the law specifies an age limit of 19. But I wonder if Kansas made that kind of argument.

[SimeyTheLimey]

Originally Posted by BRussell

I have no idea what the motivation was behind the Kansas law (though it's pretty easy to conjecture), nor what they argued in court. But I'm suggesting one possible reason for this type of discrimination, and I think you may have misunderstood my point. We know that true pedophiles are more likely to have boy victims, whereas regular, what are called "situational" child molesters tend to have girl victims. Situational child molesters could be either straight or gay with their adult relationships, but I think it's wrong to consider true pedophiles to be either straight or gay. Their orientation, if you want to call it that, is usually toward ~12 year old boys. Michael Jackson, assuming he's guilty, fits the profile perfectly. Not gay, but a pedophile. If this portrayal of pedophilia is accurate, then that could be a reason to be more careful about same-sex Romeos than opposite-sex ones: True pedophiles are probably more likely to persist in their behavior than situational child molesters.

I don't really think it applies here, because you don't know if someone is a true pedophile until they're older, so it's really a moot point when the law specifies an age limit of 19. But I wonder if Kansas made that kind of argument.

Kansas had the burden to prove that the motivation wasn't just animus, and it failed to carry that burden. That's why the statute was ruled unconstitutional.

As for the possibility of different types of child molesters, I am not sure what difference it makes. Are you suggesting that some types of child molestation is more acceptable to you than others? That seems to be what you are suggesting, and it would be the only way to really justify making something a crime for only one kind of person, while making the exact same kind of behavior not criminal or less criminal for another.

If it makes it easier to understand, suppose we say that underage drinking is a problem and so we criminalize serving alcohol to minors. But suppose we decide that blacks will get seventeen years for serving alcohol, but whites will only get a year and three months for the same offense. Would it make the law any less facially discriminatory if I argued that for some reason, blacks were more likely to serve alcohol to minors? No it would not. If a group commits more crimes, then you can individually prosecute them for the crimes they commit, even if as a group that means more of them end up in jail than another group that doesn't commit the same crime as often. But you can't just decide to multiply the punishment against an individual just because that individual happens to belong to a certain group. Criminality is an individual matter, and we are only responsible for our own crimes, not those of people who happen to share a trait with us.

In any case, it is simply wrong to talk here about child molesters and pedophiles in this context. This law really does not apply at all in that context. The Romeo and Juliet statute is only an exception to the general statutory rape statute that already applies to everyone equally. All the Romeo and Juliet law does is use some common sense to mitigate the sentence when the situation you actually have isn't a 49 year old molester like Michael Jackson, but in fact simply two high school age kids dating and engaging in consensual sex.

And that actually brings me to my continuing fear. That is simply that the existing neutral law will simply be enforced unequally. It's not unheard of for people 18 to date people younger than themselves, but prosecutions are very rare indeed. I hope the police understand that they have to use the same common sense with when to prosecute and when not to regardless of the sexual orientation of the kids.

[Millennium]

Originally Posted by BRussell

I'm going to play devil's advocate here (mainly because I enjoy disagreeing with Simey ). Should these laws really be sex-neutral? What about the example of an older woman having sex with a young boy. Is that really the same as an older man with a young girl?

Why is rape only wrong when a man commits it?

[olePigeon]

Originally Posted by dcmacdaddy

Wow! I didn't think a state could/would willfully enact legislation that
was so blatantly discriminatory to a whole class of individuals, but Kansas did.

I heard there's even a religion.

[BRussell]

Originally Posted by SimeyTheLimey

If a group commits more crimes, then you can individually prosecute them for the crimes they commit, even if as a group that means more of them end up in jail than another group that doesn't commit the same crime as often. But you can't just decide to multiply the punishment against an individual just because that individual happens to belong to a certain group. Criminality is an individual matter, and we are only responsible for our own crimes, not those of people who happen to share a trait with us.

Yeah, I can agree with that.

[BRussell]

Originally Posted by Millennium

Why is rape only wrong when a man commits it?

Simey has convinced me that it shouldn't be written into the law. But we also shouldn't punish equally just to be consistent - foolish hobgoblins and all that. I'd bet the average older woman-young boy sexual relationship is very different from the average older man-young girl sex.

[MacNStein]

Originally Posted by olePigeon

I heard there's even a religion.

The NAACP?