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).
