Here's an earlier CONLAWPROF post of mine on the Limon case, which includes a link to the state-court decision.
Thought there might be some interest in a post-Lawrence development today, about which I posted the following on SCOTUSblog: Lawrence, Romeo & Juliet, and a GVR The Court today granted the petition in No. 02-583, Limon v. Kansas, vacated the judgment and remanded the case to the Court of Appeals of Kansas for further consideration in light of Lawrence. The case raises the question whether the rationale of Justice O'Connor's separate equal protection concurrence affects a conviction for sexual sodomy involving a minor. Limon was an 18-year old man convicted of "statutory" criminal sodomy of an almost 15-year old male minor. Limon was sentenced to more than 17 years (206 months) in jail. The facts as related in the state-court opinion are as follows: Limon has been diagnosed in the intellectual range between "borderline intellectual functioning" and "mild mental retardation." This means he does not function at the level of a normal 18 year old. He had been admitted to the Lakemary Center (Lakemary), a Kansas residential school for developmentally disabled children. The center focused on serving students with developmental disabilities and psychiatric disorders or behavioral problems. . . . At the time of the allegations in this case, Limon had just had his eighteenth birthday. Limon met another male student at Lakemary, M.A.R., who consented to Limon performing oral sex upon him. When M.A.R. requested that Limon stop, he stopped. It is not clear from the record how the police became involved in this case. Upon their intervicw ofLiroon at the school, he admitted to having had consensual oral sexual contact with M.A.R. M.A.R. was evaluated by Earl Robert Kilgore, Jr., of Lakemary, who also evaluated Limon. M.A.R. was found to function in the upper limits of the range of mild mental retardation, which represented a slightly lower functioning than Limon. M.A.R. was 14 years and 11 months old at the time of the incident. Limon was 3 years, 1 month, and a few days older than M..A.R. Limon was convicted under K.S.A. 21-3505(a)(2), which defines unlawful criminal "sodomy" as "sodomy with a child who is 14 or more years of age but less than 16 years of age." Because the case involves a minor, Lawrence is not directly controlling. However, Kansas, like some other states, has a so-called "Romeo and Juliet" law, pursuant to which the consensual sexual act in question here would have subjected Limon to a far less severe penalty (13-15 months) had the minor been of the opposite sex. (K.S.A. 2000 Supp. 21-3522 reads: "(a) Unlawful voluntary sexual relations is engaging in voluntary: (1) sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and child and the offender are the only parties involved and are members of the opposite sex.") Limon raised an equal protection challenge, which the Kansas courts denied. Those courts will now have to decide whether the rationale in Justice O'Connor's opinion requires that Kansas treat same-sex and opposite-sex statutory sodomy on equal terms. If the Kansas courts answer that question in the affirmative, they then presumably will be confronted with a statutory question whether the "Romeo and Juliet" provision should be extended to same-sex sodomy, or whether it should be invalidated altogether, even as to persons of opposite sex. Cf. People v. Liberta, 474 N.E.2d 567 (N.Y. 1984) (sustaining an equal protection challenge to the state's rape law, which included an exemption for spousal rape, but further holding that the legislature, if faced with the choice, would probably extend the prohibition of rape to married persons, rather than abolish the crime altogether, leaving intact that portion of the statute under which the defendant was convicted), cert. denied, 471 U.S. 1020 (1985). ----- Original Message ----- From: "Marc Poirier" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Friday, July 11, 2003 3:48 PM Subject: Re: A Lawrence puzzle: Limon remand > Andy's right, the Limon remand is odd. The Lawrence majority opinion > clearly does not extend sexual privacy to minors. The Limon case is thus > outside the privacy holding in Lawrence. It might also be outside Lawrence > for other reasons, such as the location of the sexual activity. (I need > more facts, and haven't been able to locate a published opinion in Limon on > LEXIS.) > > Is it possible that the Court intended for the Kansas courts to reconsider > Limon in view of O'Connor concurrence in Lawrence? Her opinion on Equal > Protection *would* be relevant to the constitutionality of the distinction > that the Kansas "Romeo and Juliet" law draws between teenage underage sex > between opposite sex and same sex couples. Is the Limon remand a signal > that, although I don't think the Lawrence opinion says so explicitly, the > five person majority in Lawrence would if put to it endorse and apply > O'Connor's Equal Protection argument? > > Marc R. Poirier > Professor of Law > Seton Hall University School of Law > One Newark Center > Newark, NJ 07102 > 973-642-8478 > > > > > > > > Andrew Koppelman > <[EMAIL PROTECTED] To: [EMAIL PROTECTED] > ESTERN.EDU> cc: > Sent by: Discussion Subject: A Lawrence puzzle > list for con law > professors > <[EMAIL PROTECTED] > cla.edu> > > > 07/11/03 02:52 PM > Please respond to > Discussion list for > con law professors > > > > > > > Matthew Limon, a mentally retarded man, had just turned 18 when he had oral > sex with a boy who was a few weeks short of 15. Had the encounter been > heterosexual, the penalty for this statutory rape would have been fairly > mild. Kansas's "Romeo and Juliet law" greatly reduces the penalties for > young people under 19 who engage in consensual sexual activity with > teenagers between 14 and 16. Had that law applied, Limon would have > received, at most, a sentence of 15 months. However, because the "Romeo > and Juliet" law expressly excludes homosexual activity, Limon was sentenced > to 17 years in jail, five years of court supervision after his release, and > to be classified as a "sexual offender" for the rest of his life. > The U.S. Supreme Court vacated Limon's conviction and remanded the > case for reconsideration the day after it decided Lawrence v. Texas, in > which it invalidated Texas's sodomy law. The Court indicated that the > Limon case should be given "further consideration in light of Lawrence," > 2003 WL 21472762, but did not explain further. > The relevance of the Lawrence case is not immediately > obvious. The law struck down in Lawrence criminalized all homosexual > sex. The Court struck it down as an improper infringement on personal > liberty. The Court also emphasized, however, that "[t]he petitioners were > adults at the time of the alleged offense," and it later emphasized that > "[t]he present case does not involve minors." (The Court obviously did not > intend to call into question the constitutionality of statutory rape > laws.) The Court did not hold that there was anything per se wrong with > classifications on the basis of sexual orientation. (That would have > implied that the U.S. military's exclusion of gays was constitutionally > problematic.) Nor did the Court hold that discrimination against gay > people was an impermissible form of sex discrimination. (That would have > implied the legality of same-sex marriage.) > So here's the puzzle. Just what principle does Lawrence stand for > that was violated by the state in Limon? What ought the Kansas courts to > do on remand, and why? > > ________________________________________ > > Andrew Koppelman > Professor of Law and Political Science > George C. Dix Professor of Constitutional Law, 2002-03 > Northwestern University School of Law > 357 East Chicago Avenue > Chicago, IL 60611-3069 > (312) 503-8431 > mailto:[EMAIL PROTECTED] > ________________________________________ >
