Posted on 02/10/2006 6:52:36 AM PST by ZGuy
A federal judge hearing a constitutional challenge to a Kansas law requiring doctors, teachers and others to report underage sex between consenting youths said the state presented no credible evidence that underage sex is always harmful.
U.S. District Judge J. Thomas Marten stopped short of issuing a decision from the bench, but he repeatedly interrupted Thursday's closing arguments by Assistant Attorney General Steve Alexander to challenge his assertions.
"Motives are irrelevant - I want to deal with facts," Marten said. "Where is the clear, credible evidence that underage sex is always injurious? If you tell me because it is illegal - I reject that," Marten said.
The lawsuit filed by The Center for Reproductive Rights, a New York advocacy group, stems from a 2003 opinion issued by Kansas Attorney General Phill Kline's opinion requiring health care providers and others to tell authorities about consensual sex by underage youths.
The group contends that forced reporting discourages adolescents from seeking counseling and medical treatment and violates their rights to informational privacy.
The Attorney General's Office contends the statute requires mandatory reporting because sex is inherently harmful to underage children. In Kansas, the age of consent is 16.
At issue in the Kansas case is what the Legislature meant when it wrote the statute to say that doctors and others must have a "suspicion of injury" caused by abuse and neglect to trigger mandatory reporting.
Marten has repeatedly asserted during the two-week trial that wording appears to indicate that the Legislature meant to vest some discretion. On Thursday, he said he would extend that same discretion not only to health care providers but also to teachers, social workers, firefighters and others required by law to report child abuse.
Bonnie Scott Jones, the attorney representing the Center for Reproductive Rights, said in closing arguments that before Kline issued his 2003 opinion, health care providers and others could exercise judgment about what to report. She said they have never been offered assurances they would not be prosecuted if they failed to report consensual sex among minors.
"The Kline opinion has very much changed the legal landscape in Kansas," Jones said.
She urged the court to issue a permanent injunction to eliminate that threat of prosecution.
During closing arguments by Alexander, the judge questioned the credibility of the state's expert witnesses who testified that underage sex should always be reported, but acknowledged under questioning they themselves were qualified to decide in their own practices whether it was appropriate to report it.
Marten told the state's attorneys they presented no credible evidence because he did not buy that "holier than thou" approach by their witnesses, saying he questioned their credibility because they don't adhere to the same standards they are espousing.
While the Kline opinion may have had no legal effect on how county attorneys prosecute their cases, the judge said, it was nonetheless the "catalyst" that raised serious questions among health care providers and others in Kansas about what consensual sexual activities between same-age minors needed to be reported.
"People who are affected by this statute absolutely have a right to know," Marten said.
The judge also noted that Kline and Sedgwick County District Attorney Nola Foulston, both named defendants in the lawsuit, had different interpretations of what sexual activities must be reported.
Kline testified that only significant penetrative sexual acts, such as sexual intercourse, needed to be reported. He even said on the stand that an underage girl performing oral sex on a boy need not be reported, but that a boy performing oral sex on a girl may need to be reported.
Foulston testified that any underage sexual contact between minors, such as the fondling of a girl's breasts, needs to reported.
Alexander told the judge that he couldn't respond to what was "seemingly in the eyes of the court a huge hypocrisy" by the witnesses. But he told the judge that the plaintiffs can't claim informational privacy where there is illegal sex among underage minors, and rejected claims that the state's reporting law was vague.
"They just don't like it. There is no evidence they don't understand it," Alexander said.
Assistant Attorney General Scott Hesse, who is representing Foulston in the lawsuit, said in his closing arguments that Kansas is looking out for the health of its children through the statute, which falls under its child protection laws.
"It is a crime to have sex with minors and it is a crime for minors under 16 to have sex. ... Since it is a crime, it is also a cause for mandatory reporters to report the crime," Hesse said.
The judge said he would try to issue his written opinion early next week.
It may be the State Attorney General who is the activist here. Apparently, the "Legislature wrote the statute to say that doctors and others must have a 'suspicion of injury' caused by abuse and neglect to trigger mandatory reporting". So, absent injury caused by abuse and neglect, there would be no requirement to report. The Attorney General wants to remove all discretion and require reporting in all cases. Looks to me like the judge is trying to apply the law AS WRITTEN, and not as someone wishes it had been written.
Is it the judge's position you find disgusting or sex between adolescents?
The finding of "not always harmful" is the role of the legislature, it is not reveiwable by the Judge, in most cases.
I read the article, but know there is much ommitted from the article and I will discuss that as well. If we were limited to discussing a liberal's articles and their rationalizations, we would be as stupid as they are. : )
Was that Kline or Klinton? I bet I know where he was going with that thought.
Shalom.
Yes it is the judge's business to establish injury because the law governing the reporting only rquires reporting in the case of injury.
No, enforcement is the job of the Law Enforcement Agencies within the state..
A judge's job is to interpret the law..
A judge determines if the law is "legal" in the first place, that is to say, whether it falls within established law and does not conflict with it..
Then a judge determines whether the law is being properly applied to the case at hand.
Seems to me that is what this judge was doing..
As to legislatures acting on it's opinion, well, that's why the judiciary is a seperate branch of the government..
It's a balance of power intended to constrain that very legislature from enacting all sort of laws without restraint...
Legislatures can enact laws, but they must be "lawful"..
They must be constitutional, first of all..
Careful there. You are not right-thinking. Right-thinking will be rewarded. Wrong-thinking will be as quickly punished. You will find this an effective combination.
The law passed by the legislators required doctors and others to report underage sex when they determined there was a "suspicion of injury"
The Attorney General issued an edict removing their discretion to report on the grouds that there was always injury.
It doesn;t seem out of place for the judge to determine whether thr AG had any basis to issue such edict.
See:
Lewis, Jerry Lee
Oh please. It's not the legislature's conclusions; it's the attorney general's conclusion.
The law requires reporting when a person "has reason to suspect that a child has been injured as a result of...sexual abuse".
The attorney general recently decided that "any pregnant female under the age of 16 has been injured as a result of sexual abuse" and therefore needs to be reported under the statute.
His opinion is ridiculous and deserves to be rejected.
It is my personal belief that girls would find a way to re-define "groping" or find a way to provide opportunities for something akin to it..
The need (or desire) for physical and sexual contact is a part of our biological makeup, and the hormonal drives that dictate sexual behaviour become strongest with the onset of puberty..
Legislation and laws will not change nature..
Anyone that goes through puberty has to deal with it, and nature will have it's way..
I also agree with what some other people have said here, I don't think some teenage boy "feeling up" his girlfriend (of the same approximate age) is a crime that needs to be reported to the authorities.
Many of us would be criminals.
Heh, tell that to God in the Old Testament. He obviously had no problem with it.
I believe the key is educating our youth, but the traditional mores our country has held, and that were eradicated from the schoolhouse have to be set back into prominence.
Though, I've been slipping lately ;)
The XXVI Amendment only says that no one above the age of 18 can be denied the right to vote on account of age. It doesn't say that states cannot set a voting age lower than 18. No state has exercised this though, and to my knowledge it has never been brought up in any legislative organ in America since the Amendment was ratified.
Hate to state the obvious, but the judge is speaking outside his area of expertise. I would no more ask a judge about human sexuality than ask for an explanation of a complex legal interpretation from a sex therapist.
I'd have been in all sorts of trouble!
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