Kansas ruling: Underage gay sex cannot be penalized more harshly than underage straight sex

Kansas can no longer punish illegal sex between young adults and teenage minors more harshly if it involves homosexual conduct, the state's highest court ruled Friday in a case watched by national groups on both sides of the gay rights debate. The unanimous decision by the Kansas supreme court represents a victory for convicted sex offender Matthew R. Limon. In 2000 he was sentenced to 17 years and two months in prison because, at age 18, he performed a sex act on a 14-year-old boy. Had he performed the same act on a girl, Limon would have faced only 15 months behind bars.

The high court ordered that Limon be resentenced as if the law treated underage gay sex and underage straight sex the same, and it struck language from the law that resulted in the unequal treatment.

A lower court had said the state could justify the harsher punishment as protecting children's traditional development, fighting disease, or strengthening traditional values.

Writing for the high court, Justice Marla Luckert said the Kansas law specifying harsher treatment for underage gay sex is too broad to meet those goals. "The statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it," Luckert wrote. "Moral disapproval of a group cannot be a legitimate state interest."

James Esseks, of the American Civil Liberties Union's Gay and Lesbian Rights Project, who represented Limon before the high court, was pleased with the ruling. "This law was specifically designed to treat gay kids worse, and what this decision says is, that is not a legitimate state interest," Esseks 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," he said.

Limon has been held at the state's medium-security prison at Ellsworth. National health groups and the National Association of Social Workers filed legal arguments supporting Limon's position. A conservative law group, Orlando, Fla.–based Liberty Counsel, helped prepare written arguments from 25 legislators in support of the original law.

Both Limon and the other boy, identified only as M.A.R. in court documents, lived at a Paola, Kan., group home for the developmentally disabled. In court an official described M.A.R. as mildly mentally retarded and Limon as functioning at a slightly higher level but not as an 18-year-old. Limon's attorneys described the relationship with the younger boy as consensual and suggested that they were adolescents experimenting with sex.

Kansas attorney general Phill Kline's office has repeatedly described Limon as a predator, noting he had two similar previous offenses on his criminal record. Kline contended that such a pattern of behavior warranted a tough sentence and that courts should leave sentencing policy to the legislature.

Kline's office had no immediate comment on the ruling.

Kansas law makes any sexual activity involving a person under 16 illegal, regardless of the context. But Limon's attorneys note that had his victim been female, the state's 1999 "Romeo and Juliet" law would have applied. It establishes lesser penalties for underage sex when the partners' ages are within four years of each other and one partner is under 19—and specifically applies only when the partners are of the opposite sex.

In Friday's decision, the court said the "Romeo and Juliet" law was intended to allow less harsh treatment of consensual teenage relationships. Luckert wrote that purpose wouldn't be harmed by striking the language limiting the law to only opposite-sex partners. She wrote that the language "suggests animus toward teenagers who engage in homosexual sex."

The Kansas court of appeals rejected Limon's appeal in 2002. The next year, the U.S. Supreme Court struck down a Texas law criminalizing gay sex and returned Limon's case to the state courts. But in a 2-1 decision in January 2004, the Kansas court of appeals noted the U.S. Supreme Court case involved consenting adults and sided with the state again. Limon then appealed to the Kansas supreme court. (AP)

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