Are some kinds of molestation better for children and families than others?
The Kansas Supreme Court has provoked a little squall of controversy. How? With a simple ruling that the state's criminal penalties for older teens, who molest younger children, cannot be harsher in cases of homosexual contact. Those who popped up in front of the cameras with knee-jerk howls of unholy chatter, for example, Matthew Staver of the misnamed "Liberty Counsel," have certainly revealed something about their own sleazy moral standards.
Let's take a look through the other end of the telescope. If the state should be able to impose harsher penalties for homosexual exploitation, does that mean that it should impose smaller penalties for heterosexual molestation? Are they saying that rape is not so bad if it is between man and woman? Staver said different treatment is justified by the state's interest in protecting children and families. Apparently, heterosexual molestation is better for children and families than homosexual molestation!
Maybe what these caterwauling political manipulators really mean, but don't dare say, is "hey, the older boys shouldn't do that to the little girls, but, at least they're learning to do it the right way." Maybe they also mean, "now, those sexually experienced older girls should not be pressing themselves on the younger boys, but, gosh, the little men have to learn some technique some time."
The moral and legal basis for the STATE to prohibit sexual molestation is that vulnerable children are being forced, coerced, pressured, influenced, and otherwise taken advantage of by people who are bigger, more powerful, and dominating. The victims are not mature enough, physically, emotionally or mentally, to give free and voluntary consent. The sexual nature of the offense usually ups the penalties, compared to say, theft or simple battery, because the physical body of the victim is invaded in an emotionally overwhelming way. All of that is true whether the crime is committed by someone of the same gender as the victim, or someone of a different gender.
Hypothetically, we could get into whether a specific act of rape violated the individual's sexual preference. That would mean greater penalties for heterosexual rape of a homosexual, than for homosexual rape of a homosexual. A heterosexual young lady could then get a higher penalty imposed on the male who raped her, by claiming to be gay! The opportunities for perjury and manipulation of the sentencing process, for revenge or to protect the perpetrator, are almost infinite. Do we really want to get our courts into that?
Or, perhaps the critics would tell us that heterosexual rape of a homosexually oriented teen is a good thing? Maybe it shouldn't be against the law at all? After all, it is important to straighten them out before it is too late? Even if a little violence is required?
Kansas Attorney General Phill Kline made a point that the defendant in this case is a predator with a prior record. It may be true that his pattern of behavior justifies a tough sentence. That has nothing whatsoever to do with the fact that his predation was homosexual. A heterosexual predator deserves a tougher sentence than a one-time offender too! If state law doesn't provide that option, perhaps the legislature should do something about it. The court cannot legislate harsher penalties for predators, the court can only insist on equal protection of the laws in whatever the legislature prescribes.
Staver is widely quoted as running the tired old line about an "activist court system" usurping a "legislative function." When Staver talks about "liberty," he clearly means liberty for the legislature. He advocates that legislators be freed of restraints which currently protect the liberty of citizens and our families. Remember what Mark Twain said: "Nobody's life, liberty or property are safe while the legislature is in session." The courts have not overturned any law making sexual molestation of children a crime. The courts have not mandated light sentences for this crime. The courts have simply insisted that the law apply equally to all. That is precisely the role Alexander Hamilton outlined for the courts in The Federalist Papers. Enemies of liberty who have styled themselves "Federalists" don't want to actually READ what the ORIGINAL INTENT of federalist philosophy was. It doesn't fit the prejudices of these modern demagogues and charlatans.
Kansas does, wisely, have a "Romeo and Juliet" provision in its laws. This recognizes that many young teens are voluntarily experimenting with what they believe to be "love," and should not be sentenced to long prison terms. The legislature has given the courts discretion, when the perpetrator is under 19 and less than four years older than the victim, to impose a short term or even probation. Of course, if too many loopholes are built in, predators will slip through them also. A short sentence or probation may not be appropriate to the defendant in this case. But that, again, has nothing to do with whether he is homosexual in his orientation or choice of victims.
Gay rights advocates, those who have warmly welcomed the Kansas decision, also have something to answer for. What kind of victory for "gay rights" is it, that the penalties for homosexual molestation of children by older children have been brought into line with those for heterosexual molestation? Gay rights is not about equal right to commit rape, is it? It is about partnerships freely chosen by consenting adults, is it not? No respectable gay rights activists would consider this decision to represent greater acceptance of homosexuality would they? Every act prohibited by the laws in question is unacceptable. I expect that homosexuals are no more pleased to be raped than heterosexuals are. IF this defendant is a predator, then his impending release is nothing to celebrate. Some innocent adult homosexual may be his next victim.
The next move is, quite properly, up to the Kansas legislature. Maybe they will raise the penalties for all molestation of younger children by older children. Maybe they will equalize all sentences at a lower level. Maybe they will exclude repeat offenders from the lighter penalties of the "Romeo and Juliet" law. Those choices are up to the legislators, not to the judges. There is no sign that the courts are going to rewrite the legislature's decisions.