The NewStandard ceased publishing on April 27, 2007.

Court to Decide on Discriminatory ‘Sodomyâ€TM Law

by Dave Reynolds

Lawyers for Matthew Limon, who was sentenced to seventeen years for having consensual oral sex with a minor when he was 18, argue before a Kansas court that their client is being discriminated against for his sexual orientation.

Sept. 1, 2004 – The Kansas Supreme Court heard arguments Tuesday over a law that civil libertarians and gay rights groups say is unconstitutional, but the state attorney general says protects children, marriage and family values.

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At the center of the debate is Matthew Limon, a 22 year-old man with a mental disability who has spent the last four years behind bars while both sides battled his case all the way to the US Supreme Court and back again.

Limon has never denied committing the crime: engaging in oral sex at age eighteen with a fourteen year-old. The issue the sides have chosen to latch onto, however, has to do with the seventeen-year sentence he received -- a punishment Limon’s attorneys say was extremely harsh because of discriminatory sentencing laws in Kansas.

According to a January 22, 2004 story in the local alternative paper Pitch, Limon grew up with his family in the tiny rural town of Satanta in Southwestern Kansas. Family members said he loved music and developed a talent for playing the piano, even though he never learned to read music. Sometime before sixth grade, family members started driving him daily to what they described as a "special Christian school" where his learning problems could be better attended.

When Limon was fourteen, a Kansas court convicted him on two counts of "aggravated criminal sodomy." In Kansas, "sodomy" is broadly defined to include any kind of anal penetration or oral sex between two people. The details of the events that led to Limon’s conviction are not public knowledge because his juvenile records are sealed. What is known, however, is that the state branded Limon with a criminal history classification that could be read later by an adult court.

In July 1999, when he was seventeen, Limon’s family sent him to live at Lakemary Center, which has residential programs for children and adults with developmental disabilities, about 40 miles south of Kansas City, Kansas. He was accepted into the program despite his criminal record.

While he was there, staff at Lakemary Center administered a number of IQ tests to Limon, the results of which ranged between 50 and 84, Pitch reported. Most experts agree that an IQ of 70 or below would indicate mental retardation. The inexact nature of Limon’s scores could suggest anything from "borderline intellectual functioning" to "moderate mental retardation".

Limon celebrated his eighteenth birthday on February 9, 2000. One week later, a fourteen year-old Lakemary resident, identified in court documents as "M.A.R.," reported that Limon had performed oral sex on him.

M.A.R. told authorities that he consented at first, and that when he later told Limon to stop, Limon did so.

When police confronted Limon, he admitted that M.A.R. was telling the truth. Limon was charged with and convicted of one count of criminal sodomy, for engaging in consensual sex with a minor.

Pitch reported that early on, Limon’s court-appointed attorney, Anthony Lupo, had suggested that his client waive his constitutional right to a jury trial. Lupo said it made no sense for Limon to fight the charge: He would undoubtedly be found guilty because he already admitted guilt.

Before sentencing, Limon told the court: "I just ask for -- please, please give me some treatment. I'm -- you know, I was wrong and I admit I want to change. I can't live like this forever and this is it. This is my final thing that -- I -- I can't do this no more, you know."

He concluded: "I want to change my life, to get right with God and, basically, get my relationship with God right. I just want to change."

A judge sentenced Limon to just over seventeen years in prison. If he serves his entire term, he will not be released until he is 35 years old. Then he will be on probation for another five years and will have to register as a sex offender for the rest of his days.

Lupo’s strategy had been to appeal Limon’s sentence, arguing that his client was charged under the wrong law.

In 1999, Kansas lawmakers recognized that young adults often have intimate relationships with older teenagers -- relationships that sometimes lead to marriage. So they passed what has been dubbed the "Romeo and Juliet" law, allowing judges to give a more lenient punishment when the sex is consensual, the minor is between fourteen and sixteen years old inclusive, the adult is less than nineteen years old, and the minor and adult are the only two people involved.

Under the Romeo and Juliet law, Limon would have received a sentence of fifteen months in prison; however, the final catch is that the two people involved must be members of the opposite sex.

Lupo argued that the Legislature violated Limon’s equal protection rights under the 14th Amendment to the US Constitution, by excluding him from the Romeo and Juliet law because he is gay.

In February 2002, Limon lost the case at the Kansas Court of Appeals. The court based its ruling on a 1986 Georgia case and decided that Limon had no "fundamental right to engage in homosexual sodomy."

The Kansas Supreme Court refused to hear the case in July 2002, two years after Limon started serving his sentence. Attorneys with the American Civil Liberties Union, which had agreed to represent Limon, then asked the US Supreme Court to consider it.

On June 26, 2003, the US Supreme Court ruled in a Texas case involving two gay men, that sodomy laws in thirteen states, including Kansas, are unconstitutional. The next day the Court sent Limon’s case back to the Kansas Court of Appeals for reconsideration in light of the previous day’s decision.

In January of this year the state appellate court again rejected Limon’s argument, ruling that the Texas case did not apply because neither of those involved were minors.

Most recently, the ACLU pushed the case back before the Kansas Supreme Court, which began hearing the case Tuesday.

Limon’s ACLU attorney, James Esseks, said he is optimistic the case will finally be overturned, even though he plans to use the same basic argument as before.

"We are going to argue simply that the Romeo and Juliet Law violates his equal protections based on his sexual orientation," said Esseks, Litigation Director of the ACLU’s Lesbian and Gay Rights Project, during a phone interview from his New York office last Friday.

"I’m hopeful," he added, noting that the fact that the court agreed to hear the case is in itself a good sign. "I think the case is elementary: The state cannot punish gay kids differently than straight kids."

Kansas Attorney General Phill Kline, who represents the state in the case, has argued successfully in the past that "homosexual sodomy is not a fundamental right."

"This is a case about an adult committing a sexual offense against a developmentally disabled child in a state supported institution," he wrote in his arguments before the appeals court last fall. "This is not a case about two consenting adults engaging in homosexual acts in the privacy of their home."

Kline has fired up both gay rights supporters and opponents with his rhetoric. In October, he told a national audience on Fox News’ The O’Reilly Factor that the ACLU’s position "is absolutely a remarkable assault on the authority of the family".

The Kansas Supreme Court’s decision could impact several other states that have laws on their books treating heterosexual acts differently than homosexual acts.

The Court could take anywhere from a few days to over a year to rule on the case.

Until then at least, Matthew Limon, also known as Inmate #70713, will wait at Ellsworth Correctional Facility where he will continue to play for the prison church choir on the piano his parents donated.

"He’s developmentally disabled," Esseks said of Limon, "but he understands he’s being screwed."

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The NewStandard ceased publishing on April 27, 2007.

Dave Reynolds is a contributing journalist.

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