Saturday, October 22, 2005

Romeo & Juliet

The Kansas Supreme Court just unanimously struck down as discriminatory a set of statutes which punished certain criminals convicted of homosexual statutory rape far more harshly than those whose crime was heterosexual. Basically, Kansas has what is known as a "Romeo & Juliet law," which reduces statutory rape sentences significantly if the perpetrator is under 19, the victim is either 14 or 15 (KS age of consent is 16), and there is less than a 5 year age difference between the older actor and the younger one. The Kansas law only applied to heterosexual cases. At bar, the perpetrator was sentenced to over 17 years in prison, when if the crime was heterosexual the maximum sentence would have been 15 months. The opinion can be found here.

The court struck down the law as having no "rational basis" for its existence. I dislike the rational basis test, both in of itself (I think that, under its terms, its far too easy to beat--when it is met normally the Court has to stretch a bit), and as applied to homosexuals (I think that the record clearly establishes that their cases deserve either "heightened" or "strict" scrutiny). I discuss this issue in far more detail in this post. But even still, I agree with Kip Esquire--this law is "indisputably unconstitutional." And the opinion text does a good job of dismantling many of the rationales the state might have for discriminatory conduct. Also, the fact that the opinion was unanimous, and came out of Kansas, should theoretically forestall accusations of judicial activism. We all know it won't, but I can dream, right?

Unfortunately, I will also note that this case is red meat for the right. Even under the best of circumstances, reducing a sentence on a statutory rape case lights up a bright, shining "critique me" sign for Christian conservatives. But worse, the criminal himself isn't a sympathetic character. Generally, R&J laws are there so that consensual sex acts between two actors of near-same age won't be prosecuted. While this case was consensual, the perpetrator has a criminal history of aggravated homosexual sodomy (no word whether those convictions were on consensual acts too). In fact, the opinion hints that the acts weren't quite consensual after all:
The State makes the same argument in a narrower fashion as applied to the facts of this case, stating the activity between Limon and M.A.R. was "less than consensual and more likely coercive." Where the State stipulated below that the sexual activity between Limon and M.A.R. was consensual, it cannot be heard to argue on appeal that Limon's actions were "coercive and predatory." We agree the wording in the stipulation that the oral sex between Limon and M.A.R. was "consensual" was a legal misnomer and a better term would have been "voluntary," but that distinction does not permit the State to back away from its stipulation at this stage of the case.

In any case, this at the very least isn't two innocent kids engaging in puppy love. The right will go wild over this.

Orin Kerr offers some interesting thoughts. He notes that the analysis in the case makes it ripe for a Supreme Court review. However, according to the news articles I've read, the Kansas attorney general does not plan to appeal, so the Supreme Court will have to wait for another day.


cakreiz said...

Memo to Thomas Frank: what's the matter with Kansas? Not as much as you've lead others to believe.

cakreiz said...

lead? led? sorry

cakreiz said...

I also agree, David, that the application of the rational basis test in these cases is often a disingenuous stretch- the Massachusetts Supreme Court overreached in its gay marriage decision (since the rational basis test is usually no test at all). It would be more intellectually honest to apply a heightened scruity in these cases.

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