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.
By the way, the rationale for the law is that children under a certain age are damaged by sexual intercourse at that age. The primary purpose of the law is to identify those individuals to help alleviate that damage not simply to punish the violator of the law.
I don't think so Sandy, the purpose of the law is twofold. One to punish the adult for sure. But secondly to identify and " to extend services to the victim and implement necessary legal steps to protect the victim from further harm, including the possibility of legal prosecution against the perpetrator."
IIRC Kentucky did just that.
It gives you hexagonal wheels...
The judge will say, "that's the law, take it up with your legislators."
Q: What do you call a lawyer with and IQ of 70?
A: Your Honor...
Many constitutional challenges are designed not to prod legislatures to make clearer definitions of the law but to to subvert and wholly nullify the exercise of legislative power that might intrude into a particular judge's "enlightened and progressive" notions of how society ought to be structured.
As I said, I'm no defender of this judge.
"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."
Most law enforcement agencies answer to the courts. Courts have the authority to give law enforcement agencies direct orders.
It is true that a judge interprets the law and determines whether it is constitutional, but a judge does not have the right to make or invalidate law based on personal preference.
I think this judge has the jurisdiction to evaluate the attorney general's interpretation of the law in question, but it sounds as if the law might be thrown out based on the judge's opinion that there is no evidence of sex harming minors. That is not within the court's authority. Many laws are based on opinion with little supporting evidence. It is the legislature's responsibility to make these laws. A court's authority to apply a Constitutional test or make sure that there is no conflict of law, does not constitute a veto power.
" It's a balance of power intended to constrain that very legislature from enacting all sort of laws without restraint... "
True, but the judiciary branch does not serve the exclusive purpose of checking the other branches. The primary purpose is to ensure that laws are enforced and applied. That this must be done in a lawful manner is a given.
True, that's the purpose of the reporting law. However, the sex-offense laws make it a crime for a person (the perp) to have sex with someone under 16 (the victim). What's weird about the circuit court's opinion is that it treats the underage pregnant girl as if she's the perp (and thus subject to loss of privacy rights) rather than the victim.
I don't know if you've read the opinion, but here it is. The screwy part starts on page 33. After concluding that minors do have a right of informational privacy (meaning a right to avoid disclosure of personal matters), the court follows up with this:
[T]here is Tenth Circuit precedent that indicates that minors may not have any privacy rights in their concededly criminal sexual conduct. Our cases have held that a validly enacted law places citizens on notice that violations thereof do not fall within the realm of privacy. Criminal activity is not protected by the right to privacy.... Kansas laws criminalize all sexual conduct with minors.... [Therefore], minor patients and clients have no right to privacy in their illegal sexual activity.So, are the girls victims in need of state protection and services, or are they criminals subject to loss of privacy rights? The state can't have it both ways, which is why I think the state's going to lose this.
All that aside, do you agree with the state that any time a person under 16 has sex, that person is the victim of sexual abuse (meaning a 15-year-old having sex with another 15-year-old is both a victim of sexual abuse *and* a sexual abuser subject to prosecution)?
Do you agree with the state attorney general that any time a person under 16 has sex, that person is the victim of sexual abuse (meaning a 15-year- old having sex with another 15-year-old is both a victim of sexual abuse *and* a sexual abuser subject to prosecution)?
Thanks for the link, I haven't read the full decision, only excerpts.
(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")
(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")
Time to check the judge's sock drawer...
Aggreed there is a huge difference between teens having sex and pre-pubescent children. Not so long ago a girl was an old maid if she was not married by the time she was 20.
I like what the apostle Paul said about two people who were having sex. "let them marry".
When I was in high school a girl and her boyfreind got married at 16. Today they are still married after 23 years, and have three children.
Of course they said to me that if both sets of parents had not allowed them to marry and supported them, they would have ended up having children out of wedlock. A very bad sin.
I have to say that if I had a daughter and she was 15 or 16 and a young man wanted to marry her I would consider it on the following criteria...
Is he a Christian man in good standing with the Church? (must be a yes answer).
Does he work hard? (Must be a yes answer)
Does he drink Alcohol or take drugs? (Answer better be "NO")
Are his parents good Christians in good Standing in the Church and do they approve of the marriage? (must be yes and yes).
I know it is old fashioned but completely allowable under God's laws to allow a teenager to marry. It is not sinful or wrong in any way. Now if you are a parent and you allow your son or daughter to run around alone with people of the opposite sex without supervision you are a fool.
Like my preacher says, you take a young boy and a girl and put them together alone, don't be suprised if a baby is on the way.
since world war 2 I think only Kentucky. Before 1860 practically everywhere.
I always equate slavery with having sex don't you?
The point I was making boys and girls was that it's wasn't Kensey who started "underage" sex. If underage means say 12-16.
Is it necessary to label it a crime to do that?
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