A Stitch in Haste

(Guest-posted earlier today at Freespace.)

One theme that recurred at a gay law conference I attended a few months ago was "Why isn't anyone talking about Limon? Where's the outrage?"

Well, I for one am never lacking in outrage:

Matthew Limon is a young man who has been diagnosed in the intellectual range between "borderline intellectual functioning" and "mild mental retardation."

In February of 2000, Limon and another male teenager were both students at the same co-ed residential school for developmentally disabled youth in Miami County, Kansas. A week after Limon’s 18th birthday, he performed consensual oral sex on the other teenager, who was nearly 15 years old -- three years, one month, and eight days younger.

Kansas has a so-called "Romeo and Juliet" law (K.S.A. § 21-3522) that makes the penalty for statutory rape less severe when the case involves two teenagers. ...Because the "Romeo and Juliet" law excludes gay people, Limon was charged with criminal sodomy instead...

...Limon received a sentence of 17 years in prison, when a heterosexual teenager with the same record would serve a maximum of 15 months for the same offense. He has now served [58] months.

...The Kansas Court of Appeals had upheld Matthew’s conviction and sentence, based on Bowers v. Hardwick, the 1986 U.S. Supreme Court case that had upheld anti-gay sodomy laws. On June 26 [2002], the Court decided Lawrence v. Texas and overturned Bowers, striking down sodomy laws nationwide. The next day, the Supreme Court vacated the decision upholding Matthew’s conviction and sentence and remanded his appeal for reconsideration in light of Lawrence. The Kansas Court of Appeals again upheld Limon's conviction in January of 2003.

Matthew Limon has now been in prison for [over] four and a half years, already three and a half times as long as a heterosexual teenager would serve for the same offense. He is not set to be released until he is 35 years old.

One particularly obnoxious (and dumb) retort to gay marriage used by bigots is "there's no discrimination here -- a straight man is free to marry a woman and a gay man is free to marry...a woman."

But try reconciling that with the facts of Limon: "Matthew Limon could easily have received a reduced sentence -- all he had to do was statutorily rape a teenage girl instead of a teenage boy." Or if you prefer, "Kansas considers the statutory rape of a girl less than ten percent as wrong as the statutory rape of a boy." (And remember, we're talking about oral sex here, not anal; many states define "sodomy" as anything other than basic vaginal intercourse).

If you think that's bad, take a look at the Kansas Court of Appeals' decision re-affirming the conviction. Remember, the U.S. Supreme Court explicitly told the Kansas court to reconsider Limon's conviction in light of Lawrence. Translation: Lawrence applies to this case -- don't pretend it doesn't.

The Kansas court's response: horselaughter.

My Constitutional Law professor once said it's perfectly permissible, even healthy, to disagree with a Supreme Court ruling. It is not okay, however, to openly defy one. If the Supreme Court says Lawrence applies, then it applies, deal with it. The Kansas court, however, impudently devoted barely a sentence to Lawrence, copping out by saying that Lawrence was about consenting adults; Limon and the other boy were not consenting adults, therefore Lawrence is completely irrelevant.

Having spit in the Supreme Court's face, the Kansas Court of Appeals then proceeds to do what it must in upholding the conviction: attempt to justify the discrimination embedded within the state's Romeo and Juliet law under rational basis review (issues such as the Eighth Amendment's ban on cruel and unusual punishment were not major points on appeal).

The Kansas court's rational basis analysis reads like a C- final exam answer from the Jerry Falwell School of Law:

In enacting K.S.A. 2002 Supp. 21-3522, 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. Moreover, traditional sexual mores have played a significant role in the sexual development of children. During early adolescence, children are in the process of trying to figure out who they are. A part of that process is learning and developing their sexual identity. As a result, the legislature could well have concluded that homosexual sodomy between children and young adults could disturb the traditional sexual development of children.

So is Kansas saying that heterosexual statutory rape is part of the "traditional sexual mores of society"?

Throughout history, governments have extolled the virtues of procreation as a way to furnish new workers, soldiers, and other useful members of society. The survival of society requires a continuous replenishment of its members. On the other hand, sexual acts between same-sex couples do not lead to procreation on their own.

Translation: Heterosexual statutory rape is not so bad because we might get little "workers, soldiers and other useful members of society" from it. Lenin would be so proud.

This one's my favorite:

When a child is born from a relationship between a minor and a young adult, the minor is often unable to financially support the newborn child. In many cases, the minor is still a dependent. As a result, the financial burden to support the newborn child properly falls to the young adult. Obviously, the young adult cannot furnish adequate financial support for the newborn child while he or she is incarcerated. The legislature could well have concluded that incarcerating the young adult parent for a long period would be counterproductive to the requirement that a parent has a duty to provide support to his or her minor child.

Of course, Kansas' Romeo & Juliet statute doesn't actually require that a child be conceived to qualify the heterosexual statutory rapist for the lesser sentence. Details, details...

Oh, almost forgot: can't discuss gay sex without invoking AIDS:

The legislature could well have considered that same-sex sexual acts between males might increase their risk of contracting certain infectious diseases. Medical literature is replete with articles suggesting that certain health risks are more generally associated with homosexual activity than with heterosexual activity.

Not exactly. When performing oral sex on a male, the gender of the one preforming the act doesn't matter for the purposes of AIDS risk. No mention of that in the statute or the opinion either.

The case is currently before the Kansas Supreme Court. Should it uphold the conviction then expect it to land right back before the U.S. Supreme Court -- while Matthew Limon continues to sit in jail.

Coming back full circle -- why isn't the Limon case getting the publicity it deserves? Several reasons I think. First Limon is represented by the ACLU and not a gay-rights group such as Lambda Legal, so it might be flying under the radar screens of most gay activists. More importantly, the case on its face does not intrinsically inspire sympathy -- we are admittedly talking about statutory rape and the mentally impaired. Limon did have a history of such conduct.

Compare and contrast: Lawrence v. Texas was, literally, the perfect test case. It concerned two consenting adults in the privacy of their bedroom. There was no prostitution involved. The police had no search warrant (they were responding to a false report by a neighbor of an "armed intruder"). There was no other crime (e.g., a drug offense) being committed. Heterosexual sodomy was legal in Texas; only gay sex was criminalized.

But does any of that mean Matthew Limon deserves less justice than John Lawrence did?

I've shown you the trees -- now step back and see the forest again: Commit statutory rape against a girl, get 15 months. Commit statutory rape against a boy, get 17 years.

Don't tell me it's not about naked bigotry.

ADDENDUM: This is sheer coincidence, but the Supreme Court of Kansas just ruled that the state's death penalty law is unconstitutional. On the one hand, one might ask just how inconsistent the state's views on punishment and due process can be. On the other hand, this is the same Supreme Court of Kansas that is now hearing Matthew Limon's appeal. Maybe this is a good sign.