Discussing the Kansas Supreme Court's recent reversal of Matthew Limon's 2000 conviction, which had resulted in Limon's being sentenced to 17 years in prison for engaging in sexual relations with a 14-year-old boy, host Bill O'Reilly falsely claimed, on the November 28 edition of Fox News' The O'Reilly Factor, that the American Civil Liberties Union (ACLU) “filed a brief arguing that the molestation of the 14-year-old handicapped boy was not a crime because the child has a constitutional right to have sex with adults.” Wendy Murphy, a frequent O'Reilly Factor guest and the former assistant district attorney for Middlesex County, Massachusetts, agreed, saying of the ACLU: "[T]hey don't want any laws on the books ... that make it a crime for a child to be abused by an adult." O'Reilly's and Murphy's comments misconstrued the charges against Limon and falsely described the ACLU's involvement, which was limited to arguing that Kansas law unconstitutionally imposed a higher penalty for sexual conduct between same-sex partners.
According to O'Reilly, the Kansas case involved “a 14-year-old handicapped boy [who] was molested by an 18-year-old boy [Matthew Limon] in a group home.” In fact, at the time of the incident, both teenagers were attending a Kansas residential school for the developmentally-disabled and engaged in consensual sexual relations. Because both Limon and the 14-year-old were male, Limon was charged with criminal sodomy instead of being charged under Kansas's “Romeo and Juliet” law (KSA 21-3522). That law carries a far lighter 15-month maximum prison sentence but addresses only "[u]nlawful voluntary sexual relations" between members of the opposite sex.
One day after the U.S.. Supreme Court invalidated sodomy laws in Lawrence v. Texas, the Limon case was remanded to the Kansas courts. On October 21, the Kansas State Supreme Court reversed Limon's sodomy conviction, ruling that the “Romeo and Juliet” law's applicability only to heterosexual sex was unconstitutional under Lawrence v. Texas, which struck down a Texas sodomy law:
The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer [v. Evans] and Eisenstad [v. Baird]: adding the phrase “and are members of the opposite sex” created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest.
O'Reilly falsely asserted that the ACLU “filed a brief arguing that the molestation of the 14-year-old handicapped boy was not a crime because the child has a constitutional right to engage in sex with adults.” He then asked Murphy: “Is this ACLU policy?” Murphy confirmed that it “appears to be their policy” and explained the ACLU position as follows:
MURPHY: [L]et's celebrate their constitutional right to engage in sex with adults even as young as age 13. In other words, they don't want any laws on the books ... that make it a crime for a child to be abused by an adult.
However, the ACLU brief merely argued that Limon should receive the same legal treatment he would have received if the other party involved had been a 14-year-old female. The ACLU objected only to the “Romeo and Juliet” law's exclusion of same-sex activity and the resulting far higher sentence. In the brief, the ACLU argued:
The Constitution guarantees that all citizens are supposed to be treated equally, but Matthew Limon is set to be in prison until he is 36 years old, while he would have been released before turning 20 if he were heterosexual ... We're not saying the state shouldn't punish those who break the law. We are only asking that the state do the right thing and treat gay teenagers the same as it does straight teenagers.
From the November 28 edition of Fox News' The O'Reilly Factor:
O'REILLY: Now, a case in Kansas where a 14-year-old handicapped boy was molested by an 18-year-old boy in a group home. And the ACLU -- and correct me if I'm wrong -- filed a brief arguing that the molestation of the 14-year-old handicapped boy was not a crime because the child has a constitutional right to engage in sex with adults. Is that true?
MURPHY: Yeah, you gotta love it when they're waving the flag of constitutional rights around for kids so they can have sex with adults. They actually wrote --
O'REILLY: Yes, but I just want to know is this policy? Is this ACLU policy?
MURPHY: It appears to be their policy.
O'REILLY: -- that children -- that children of any age have a right --
MURPHY: Thirteen. As young as 13.
O'REILLY: -- have a constitutional right to have sex with adults? That's their policy?
MURPHY: That's right, and that we should -- absolutely, let's celebrate their constitutional right to engage in sex with adults even as young as age 13. In other words, they don't want any laws on the books --
O'REILLY: Right.
MURPHY: -- that make it a crime for a child to be abused by an adult.
O'REILLY: But you're sure this is their policy? You're sure this is ACLU policy?
MURPHY: All I can tell you is that they put it in an amicus brief, which is to say that's an expression of their position on this issue, and they did it in the Kansas Supreme Court, so one has to assume that that is their position in general, not unique to Kansas.
O'REILLY: Yeah, if they made it a brief and it's in the court record in Kansas, then it is.