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.
I think that the entire attitude about underage sex -- that is, with 16-17 year olds, bears re-thinking.
Imho, it wouldn't do us ANY harm to RE-THINK our current attitudes about "teens" as "children."
Not me! As hard as I tried my record stayed clean. Well, there was this one time when three older girls MADE me do things but that shouldn't count.
After rereading the article and your post--I agree.
Another problem with this is that it seems there is more intent to prosecute the boys. And then what, they become registered sex offenders for life for being young and ... amorous?
"Imho, it wouldn't do us ANY harm to RE-THINK our current attitudes about "teens" as "children.""
Actually, that's been an ongoing practice since the 1950s. The laws regarding people between the ages of 13 and 19 have changed radically since then. When I was growing up, the age of majority was 21 in California.
We're rethinking this stuff all the time. I remember when the "emancipated minor" law came into being in California.
The law never stands still.
Let me guess. Clinton appointee?
Are we cousins? My granny was maried at 13 to a man in his 20s.
Great, Judge! I'll come by the house to pick up one of your kids tonight. Say 7 o'clock?
But the question the judge is considering is whether the people of Kansas, acting through their representatives, really determined the State should concern itself with a couple of 15 year olds getting to second base. (Even if a Janet Reno wannabe thinks they should)
There is a vast gulf of moral difference between animalistic and exploitative sex between underages kids, and a young teenage girl marrying. As people have mentioned before, and on this thread, in previous generations girls often married by their mid teens, usually to a young man a bit older than them. Some of our grandparents were these ages.
Marriage and illicit sex can't be compared.
No it's not. And asserting that it is just clouds the issue. There is no law in Kansas proscribing "two 17 year olds" from having sex, be it a day before their 18th birthday or a day after there 17th birthday.
"There is a vast gulf of moral difference between animalistic and exploitative sex between underages kids, and a young teenage girl marrying. As people have mentioned before, and on this thread, in previous generations girls often married by their mid teens, usually to a young man a bit older than them. Some of our grandparents were these ages.
Marriage and illicit sex can't be compared."
Yes by all means, lets give 13 year olds the right to vote.
A way many harmful bills are passed, not just this one, is the implication that if you are not in favor of the bill then you are in favor of the activity it prohibits. That is how we end up with the obviously dicriminatory affirmative action bills and many of the other "politically correct" legislation.
If you oppose a bill banning sex between the underaged, whatever arbitrary age that may be, you are in favor of sex by the young and by extension, sex between older men and young girls. Hard to vote against that.
The same with affirmative action - if you don't favor affirmative action it is implied that you favor discriminating against blacks. Oppose hate crimes legislation and you favor hate crimes, etc.
Bad logic and intimidation by the left, usually, have put us in precarious positions as a society in some cases.
About what? Certainly not about issuing an injucntion against the AG's opinion on the law. The Tenth Circuit overturned that decision about a week ago stating that the AG's opinion and the law both had a rational basis. Which means that Judge Marten won't be making any new law in Kansas toto.
When were kids allowed to marry at age 12 in the US? You are just sayin'...
You have consturcted a strawman to argue against. Your strawman is that Kansas prosecutes minors having underage sex and that is the purpose of the law. Since the law was passed in 1982, there must have been millions of prosecutions of consensual sex between two kids under 16. Why don't you find us one?
Judge Marten, there is also no credible evidence that prostitution is always harmful.
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Well said. How about under age prostitution, under the influence of drugs and/or alcohol, while driving a car without a license? (just kidding!)
Perfect example of the slippery slope you travel when you try to legislate from the bench. nice point.
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