Kansas Appeals Court Recognizes Homosexuality Does Not Equate to Pedophilia

Here's an old prosecution trick: play on a jury's ignorance and presumed homophobia to secure a conviction on child molestation charges by yelling "gay, gay, gay" at every opportunity.  And here's an honest appeals court, the Court of Appeals of Kansas, reversing the conviction of William James Blomquist (State v. Blomquist, 2008 Westlaw 538964 [Feb. 29, 2008]), because of the trial court's failure to do the right thing and reject the speculative and argumentative evidence about the defendant's alleged sexual orientation and its "relation" to the crimes charged.

Blomquist was charged with having his way sexually with a mentally-retarded 12-year-old boy, the son of a family friend.  The only evidence to the charged conduct were statements the boy made to his mother and rather vague testimony at trial.  According to the opinion by Judge Buser, "During the fall and winter of 2004, B.D. frequently stayed overnight at the Anderson County residence of Sharon Blomquist and her 31-year-old unemployed son, William.  William had befriended B.D. and his mother, Carla.  According to Carla, B.D. enjoyed spending time with William because there were many child-friendly activities at his home, including working on cars, model building, and movies.  Eventually, Carla began to wonder if something was amiss.  She sat down with B.D. and asked him if anyone had ever touched him or if anything had ever happened between him and William.  B.D. became upset, and after initially denying any such touching, confided to his mother that he and William had engaged in lewd fondling and oral and anal sodomy."

Williams was charged with a total of 78 counts, based on 26 dates from September 18 to December 29, 2004, on each of which he was charged with having committed aggravated indecent liberties with a child, aggravated criminal sodomy, and aggravated indecent solicitation of a child.   The entire prosecution case was based on alleging over and over again that William was gay.  William did not testify in his defense.  The prosecution's case was based on Sharon's diaries, which included speculations about her son's sexual orientation, and that a recent falling out he had with a close male friend was due to the friend, with whom her son said he had sexual relations, having transfered his affections to another.  The friend was not produced as a witness.  The evidence included a video recording of a police officer interrogating William, over and over again trying to get him to say he was gay without coming out and asking him, with William repeatedly denying he was gay.  The dates on which misconduct was alleged were based on the dates when Sharon's journal reflected stayovers by B.D., but not on any specific testimony that anything particular happened on any of the dates.

When challenged on this strategy, the State took the position that because William was charged with molesting a boy, his sexual orientation was relevant to establishing motive and the credibility of the retarded boy's testimony.  The trial judge evidently bought it lock stock and barrel, but the appellate court was not taken in, reversing the conviction and sentence of 400 months.

Judge Buser rejects the state's assertion that "lewd fondling or touching between an adult and a 12-year-old child of the same sex is a 'homosexual act.'"  "The State," he observes, "assumes that a sexual desire for children is among those desires which define a homosexual orientation," but the argument is flawed.  Citing authority from half a dozen jurisdictions, Buser concluded that evidence of homosexuality is not relevant to establish pedophilia, and is prejudicial to the defendant.

Buser asserted that "it was unreasonable for the State to assume that a sexual desire for children is among those desires which define a homosexual orientation...  Nothing in this record suggests that William's adult relationships with Brandon [the alleged boyfriend], Carla, or any woman he may have dated were evidence of the charges against him.  Given the 'prejudicial character' of homosexuality, the prosecutor's conduct in this case was analogous to prosecutorial appeals to passion, prejudice, and fear which have been so long rejected by Kansas courts.  Having carefully considered the record, we hold the prosecutor's conduct was improper."

The State argued that William had somehow put his sexuality at issue by making no attempt to deny the State's assertions through defense witnesses.  "We do not agree, based on this record, that William placed his sexual orientation at issue," wrote Buser.  "Rather, it was the prosecutor who within moments of the trial's commencement labeled William a homosexual and proceeded to develop the State's case-in-chief around William's purported sexual orientation.  We read the balance of the State's arguments on appeal as leaving intact its assumption regarding homosexuality and a sexual desire for children.  If that were not the State's assumption, nothing would be left of its trial strategy but a pure appeal to prejudice.  We would not hesitate to find ill will in such a situation."

Without this tainted evidence, the State's case, relying solely on the retarded child's vague and indecisive testimony, fell apart.  "The testimony was not direct and overwhelming.  William does not challenge the sufficiency of the evidence, but even so an inference was required.  The inference, that William committed each of the acts charged during every overnight stay shown in Sharon's journals, was susceptible to the prosecutor's misconduct.  We cannot say that the error was harmless. . .  Accordingly, we reverse the convictions and remand for a new trial."

William had alleged a variety of other trial errors on appeal, which the court found to be cumulative error reinforcing its conclusion that a new trial was necessary.