GAY RAPE: OK

NYT reports that the Supreme Court has overturned the 17-year sentence of a Kansas man convicted of statutory rape of a 14-year-old boy. They remanded it to a lower court “for further consideration in light of Lawrence v. Texas.”

Now, wait a minute. The ruling from Lawrence was:

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

So, it was a due process finding, not an equal protection argument, that won the day. Further, Kennedy ends with,

This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life. Pp. 17-18.

Well, this case does involve a minor. Who, by definition, can not give consent. Which is why we have statutory rape laws.

Now, granted, a 17-year sentence seems rather excessive for oral sex. And I’d need to know more about the case in question before I’d want to pronounce a sentence here. But I’m baffled that Laurence v. Texas would control here. And, furthermore, even if we now believe adult homosexuals have a privacy right to do as they will behind closed doors, that does not mean they have the right to rape small boys. Further, I would argue, given that heinous as rape is, homosexual rape of heterosexuals is even worse. This ruling is truly bizarre.

Update (1708): Clarification, the opening part of the last paragraph stems from this passage in the linked article:

Matthew Limon was one week past his 18th birthday in early 2000 when he performed oral sex on a 14-year-old boy at the center for developmentally disabled young people where they both lived. No violence or coercion was involved.

Had Mr. Limon performed oral sex on a 14-year-old girl, he could have received a prison sentence of about 15 months, and possibly just probation. Instead, he is now about three years into a 17-year sentence in the Ellsworth Correctional Facility. Under his sentence, he was also ordered to register as a sex offender upon his release.

I would want to know more about the fact that they were both “developmentally challenged,” for one thing. Is that PC speak for “retarded,” “criminal,” or what? Were they boyfriend and, um, boyfriend? While 18 and 14 strikes me as a significant disparity–I was in my mid 20s before I dated someone more than a year younger than me–it isn’t absolutely unprecedented for a high school senior to date a freshman. Taking the totality of the circumstances into consideration is normal in sentencing.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. jen says:

    I take exception to your comment:

    Now, granted, a 17-year sentence seems rather excessive for oral sex. And I’d need to know more about the case in question before I’d want to pronounce a sentence here.

    Rape is rape is rape – it it a violent act perpetrated on another person. In the case where a child/minor is raped, then the sentence should be tougher. You’re implying that forcing a minor to perform oral sex isn’t as heinous a form of rape than if it were sodomy. All forced sexual acts are against the law, and in the case of minors, the book should be thrown at their rapists.

    17 years seems like a short sentence to me, no matter what the case details.

  2. O. F. Jay says:

    Wait wait wait a minute!!! What’s going on with the SCOTUS? Lawrence v. TX has no bearing with this… the same statuory rape laws regarding sex with minors apply here.

    Agreed, James! This isn’t license for NAMBLA to rejoice.

  3. John Lemon says:

    I agree fully with Jen. As the father of a son who will someday be 14, I think 17 years ain’t even a fraction of the time he deserves.

  4. Mark Hasty says:

    I’ve commented on this at my site. Basically, looking further at the facts of the case, I think there is an equal-protection violation here, in that Kansas law provides lesser sentencing options for heterosexual statutory rape than it does for homosexual statutory rape. In light of Lawrence v. Texas, that’s clearly not going to be permitted any more.

  5. Mark Hasty says:

    Oh, and “developmentally disabled” is PC for “mentally handicapped,” or, if you prefer, “retarded.” But not “criminal.”

  6. James Joyner says:

    Mark:

    But Lawrence isn’t based on the equal protection clause, but on the due process clause and the “right of privacy.”

    And, while I think consensual adult sodomy should be permissible, I’d argue that nonconsensual homosexual conduct is worse than its heterosexual counterpart.

  7. Mark Hasty says:

    James:

    When the court said “in light of” Lawrence, they were telling the lower court to read between the lines.

    Likewise, I’d argue against the claim that privacy and due process were the sole bases for the ruling the court made, in light of this from Kennedy’s opinion:

    Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation’s laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

    Sounds to me like Kennedy’s saying any laws proscribing homosexual acts are, at best, suspect, and the Supreme Court is not going to permit homosexual and heterosexual conduct to be regarded differently under the law–even when criminal sexual conduct is involved. The de facto result of Lawrence may well be that those who engage in homosexual conduct are now granted equal protection under the law. Maybe not in reality, but that’s how the court is signaling its future interpretation will come down.

    It was fortuitous for Matthew Limon that his case was heard today and not, say, Wednesday.

  8. Meezer says:

    I was afraid there would be problems with that ruling someday, down the road, on some monor points, but this takes my breath away. Did I wander into another dimension again (my husband hates when I do that)?

  9. James Joyner says:

    Mark: In light of today’s ruling, it may well be. Indeed, I’d have preferred that Lawrence have been decided on equal protection grounds rather than the bizarre reasoning they used.

    Kennedy’s passage you cite was in context of evaluating rational basis, I think.

  10. Mark Hasty says:

    James:

    Read Justice O’Connor’s opinion; she does arrive at her stance based on equal protection.

  11. James Joyner says:

    Mark: I’ll have to read it. But it was a lone concurrence in a 6-3 decision, so Kennedy’s opinion, joined by 4 others, should be controlling. But, hell, they just dug up Powell’s lone concurrence to make it the basis for the Michigan cases, so who knows?

  12. Paul says:

    Hey- I got a question…..

    Didn’t Rick Santorum say something like this?????

    OH you mean he was making a legal point and not just being homophobic! Go figure!

    That sucking sound you hear is pandora’s box being opened.

    Paul

  13. Paul says:

    And one more for you court watchers….

    MANY people have been convited of “aggravated” sodomy when they have done it to youngsters, invalids etc.
    The “aggravation” being that the other person could not consent BUT the law broken was the sodomy law.

    What happens when all the sodomy laws are overturned? Do all of these registered sex offenders now have no record?

    Did anybody think about that?

  14. James Joyner says:

    Paul: I’m not sure this ruling is *that* sweeping. The man’s conviction isn’t being overturned; just his sentence. My guess he’ll wind up getting a sentence comensurate to what he’d have received had the victim been a 14-year-old girl.

  15. Paul says:

    Maybe you misunderstand what I meant to say–

    (forget this exact case for a second)
    Many people have been convited of sodomy with aggrevating circumstances. If there is no sodomy law at all how can the conviction stand?

    The people would have to be rebilled under a different statute and that is… you got it, double jeapordy. (I can even hear the theme song.)

    I’m a geek not a lawyer but I see now way their convictions are not overturned. The law they broke no longer exists.

    Am I wrong? (and if I am please tell me how, I really don’t get it.)

    Paul

    BTW I also see dozens (scratch that) hundreds of laws having to be rewritten to protect children.

  16. Paul says:

    TYPO- I see NO way their way their convictions are not overturned. (sorry, I was channeling Lemon)

  17. James Joyner says:

    Paul:

    Statutory rape is against the law even for heterosexuals. So, if an adult has sex with a minor, regardless of the genders involved, it’s statutory rape.

    If sodomy is legal, then doing something legal “with aggravation” would be a non sequitur.

    And, I’m no lawyer either but I think that, if a conviction is overturned, for any reason, you then have a trial de novo. It wouldn’t then be double jeapardy to recharge them with the same crime or a different crime. It’s only double jeopardy if someone is ACQUITTED and then recharged. And not always even then.

  18. John Lemon says:

    Channeling Lemon? Huh?

    And by the way, I think both hetero and homosexual rape should be weighted equally. I don’t really see the case where one is more heinous than the other.

  19. James Joyner says:

    John: While both are heinous, I would have to think that a heterosexual man being raped by another man would be more scarred than a heterosexual woman being raped by a man.

  20. jen says:

    James,

    I’ll say it again…rape is rape is rape. It doesn’t matter who is raped, it’s a violent sexual act whether it’s perpetrated against a man or woman. Both are going to be scarred – emotionally, physically, and sexually. So I disagree with your assessment that a hetero male that is raped by a man is going to suffer more than a female that is raped by a man. The suffering may be different but not more or less.

  21. James Joyner says:

    Look at it this way: You’re being assualted and intimidated in both circumstances. In one, you’re being forced to do something that, under other conditions, you find pleasurable. In the other, you’re being forced to do something you find absolutely repugnant. Which is worse?

  22. jen says:

    James, you’re making a large assumption about the female rape victim.

    1. You’re assuming she’s had sex before. Many women’s first sexual experience (if you can call it that) is rape. I don’t have statistics, but I’m sure it’s a pretty representative number. So if that’s the case, then she has no idea that sex would otherwise be pleasurable.

    2. You’re assuming she’s enjoyed sex before. I think that’s pretty self explanatory. Believe it or not, there are some women who have never had a pleasurable sexual experience.

    Why do you think that a woman being raped by a man doesn’t find that repugnant? I will tell you this, there’s not much that I fear – but I am terrified of being raped. It’s the most dehumanizing form of violence a man can do to a woman (or another man for that matter). And it’s not about sex, really – it’s about power, violent power over the victim – using a “weapon” that will cause a lot of psychological damage. Many women never recover from it enough to have a normal sexual attitude or relationship.

  23. kai says:

    dude thats just messed up big time