Kansas appeals court backs harsher sentence for underage gay sex

TOPEKA – A Kansas appeals court ruled Jan. 30 that it is constitutional to give a bisexual teenager a sentence 13 times longer than a straight teenager would receive for the same crime.
Judge Henry W. Green Jr. wrote in the 2-1 decision that legislators could justify differing penalties for heterosexual versus homosexual sodomy in plenty of ways, including higher health risks or an attempt to "encourage and preserve the traditional sexual mores of society."
The ruling rejected an appeal by Matthew R. Limon, who was sentenced to more than 17 years in prison for having sex when he was 18 with a 14-year-old boy in 2000.
Kansas law makes any sexual activity involving a person under 16 illegal, however, a 1999 "Romeo and Juliet" law provides lesser penalties for consensual sex when one partner is 19 or under and the other partner's age is within four years. Had Limon's partner been a girl, he could have been sentenced at most to one year and three months in prison under the "Romeo and Juliet" law.
"The court's opinion in this case defies comprehension, and we intend to seek an appeal," said Dick Kurtenbach, Executive Director of the ACLU of Kansas and Western Missouri. "The U.S. Supreme Court ordered Kansas to reconsider this case in light of its holding last summer that the government can't have a different set of rules for gay people than it does for straight people," Kurtenbach said in a press release.
Representing Limon, the ACLU argued that the differing sentences represented unconstitutional discrimination against gays, especially because the U.S. Supreme Court in June struck down state laws, including one in Kansas, criminalizing gay sex between consulting adults.
The appeals panel said that decision did not apply to sex acts involving children. The panel said lawmakers could have several reasons for setting up differing sodomy penalties, just as they can justify making it illegal to furnish alcohol to children but not to adults.
"The Legislature could have reasonably determined that to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans, it would encourage and preserve the traditional sexual mores of society," Green wrote.
The dissenting judge, G. Joseph Pierron Jr., said the state had no rational basis for the differences in sentencing.
"This blatantly discriminatory sentencing provision does not live up to American standards of equal justice," Pierron wrote.
Limon and his partner lived at a group home for the developmentally disabled.