Tuesday, February 03, 2004

Criminal Strict Liability and "Romeo and Juliet" 

We're covering strict liability in Criminal Law this week, and one of the cases was Garnett v. State, 332 Md. 571, 632 A.2d 797 (Court of Appeals of Maryland, 1993), which involved a 20 year old mentally retarded man being charged with second degree ("statutory") rape after having consensual sex with a 13 year old who told him she was 16, and appeared to be at least that age. The conviction was upheld on appeal, given that Maryland's law applies strict liability, with no mens rea requirement.

This week another case has been decided in Kansas, also dealing with consensual sex with a minor.

As reported in The Advocate and The Washington Post, and as detailed in the Opinion, the Court of Appeals for the State of Kansas has held that in cases of strict liability sexual relations with a minor under the age of 16, the state can apply their "Romeo and Juliet" law to heterosexual teenage couples (if one partner is over 16 but under 19, and the other partner is under 16 but within 4 years of the older partner, the punishment is a little over one year) while excluding same-sex couples from the same exception and therefore subjecting the older partner to much greater sentences.

In this case Matthew R. Limon was sentenced to 17 years in prison for having consensual oral sex when he was 18, with a 14 year old boy, while they were both residents at a school for the developmentally disabled. Had the 14 year old been a girl, Limon would have received a maximum of 1 year, 3 months imprisonment.

One of the rationales presented in the opinion strikes me as similar to one of the arguments presented in Goodridge v. Public Health by the opponents of gay marriage. In Limon, the court states: "Further, Limon's "had he been a female" argument is flawed. There has been no evidence that limiting the applicability of K.S.A.2002 Supp. 21-3522 to members of the opposite sex was motivated by a gender bias. Although K.S.A.2002 Supp. 21-3522 is gender specific, it creates no discernible difference between the sexes. For instance, K.S.A.2002 Supp. 21-3522 neither disadvantages nor advantages men or women. The statute places both men and women under the same restrictions and similarly excludes them from the statute's applicability when they engage in same-sex sex acts. We determine that the classification embodied in K.S.A.2002 Supp. 21-3522 is not quasi-suspect. As a result, Limon's argument that K.S.A.2002 Supp. 21-3522 discriminates based on gender fails." Limon, supra, at 10.

In Goodridge, the concurring opinion states: " classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner because of the traditional opposite-sex restriction, a violation of art. 1 has occurred. See Commonwealth v. Chou, 433 Mass. 229, 237-238 (2001) (assuming statute enforceable only across gender lines may offend Massachusetts equal rights amendment). I find it disingenuous, at best, to suggest that such an individual's right to marry has not been burdened at all, because he or she remains free to chose another partner, who is of the opposite sex." Goodridge, supra at 346.

Limon's attorneys are planning an appeal, and are deciding whether to request the Court of Appeals to reconsider, or to request review by the Kansas Supreme Court. It will be interesting to see how this plays out. Will the state be able to justify selectively providing exceptions to a strict liability crime?
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ETA (2/3/04 10:30 am): I just found that The Sleepy Sage also has an interesting posting on this case.

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Posted by Beth Henderson at 8:51 AM