Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, October 25, 2005

Case Law Development: Statute Providing Lesser Penalties for Sexual Relations with Opposite Sex Minor than Same Sex Minors Violates Equal Protection

The Kansas Supreme Court has held the state’s “Romeo and Juliet” law violates the equal protection under both the United States Constitution and the Kansas Constitution.  The statute, which provides a lighter sentence for consensual sexual conduct when that conduct occurs between a child of 14 or 15 and an offender who is less than 19 and less than 4 years older than the victim, applies only if the victim and offender are opposite sex.  Thus, if a same-sex young adult and child have consensual sexual relations, the offender is subject to dramatically more severe sanctions.  Two of the three members of the Kansas Court of Appeals had upheld the statute.  One judge found that the statute was rationally related to the significant government objective of preventing sexually transmitted diseases.  The second found justifications as well in protecting the “sexual development of children” and discouraging “voluntary sexual behavior between young adults and children which deviates from traditional sexual mores” and protecting marriage and procreation.  The Supreme Court concluded that not of these proferred justifications survived rational basis scrutiny after Lawrence v. Texas.  Having concluded that the statute violated equal protection, the court concluded that the legislative intent behind the statute was furthered best by severing the words "and are members of the opposite sex" from the statute, rather than by voiding the entire statute.

State v. Limon, 2005 Kan. LEXIS 715 (October 21, 2005)
Opinion on the web at (last visited October 25, 2005 bgf)

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