WELL, THAT DIDN’T TAKE LONG

James Joyner reports on a Kansas statutory rape case that was remanded to a lower court “for further consideration in light of Lawrence v. Texas.” James is justifiably perplexed:

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.

My thoughts? It may be truly bizarre, but I do believe the Supremes recognize the particular can of worms they’ve opened here. I believe what they may be asking the lower court to do is examine if the sentence was more severe than necessary strictly because the case involved a man molesting a boy. I don’t think anybody’s arguing that the verminous dude in question deserves a serious prison sentence; I think what is being set forth is the idea that, in sentencing people for sex crimes, you can’t use the gender of the perpetrator vis-a-vis the gender of the victim as justification for a harsher sentence.

And, in fact, that’s exactly what’s going on in this case. Consider this from the New York Times:

The court’s directive today that the Kansas courts reconsider the Limon case with Lawrence v. Texas in mind was tantamount to an instruction to set aside the prison term imposed on Mr. Limon, and perhaps to take a close look at what has been called the state’s “Romeo and Juliet Law.”

The statute gained that nickname in some legal circles because it regards oral sex differently when it involves heterosexual teenage couples, as opposed to youths of the same sex.

When one member of the couple is aged 14 to 16 and the other is older, the act is statutory rape under the Kansas law and the most common penalty is probation if the two are heterosexual. But probation is not available to same-sex teenage couples.

I don’t know about you, but, in light of yesterday’s decision in Lawrence v. Texas, that sounds an awful lot like an equal-protection violation to me. I think the Supreme Court got this one right.

UPDATE!

It’s pretty amazing what you discover when you read all the way to the end of the story:

Matthew Limon [defendant in this case] 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.

Factor all that together, and it’s difficult to justify a 17-year prison sentence. This wasn’t the act of a predatory Lothario; this was two teenagers in the same institution for the developmentally disabled doing something that’s not exactly unheard of, even there.