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'm commenting on this article...as posted. Did you read it?
We need to act before the judge dies. We need to stop these activist judges and their liberal minions with political and social action.
In Kansas, actually, common law marriages are legal when the girl is just 12...even now. Here's some more information:
"In addition to statutory law, Kansas is one of the few states in the union that recognizes Common Law Marriages. The age required for Common Law Marriage in Kansas is lower than that required for a statutory marriage by K.S.A.23-106, above. For Common Law Marriage, the female must only be 12 years old, the male 14."
Of course that isn't the main issue in the case, the 10th Circuit has already slapped down the activist Martens and you have yet to post the millions of kids prosecuted for having some kind of consensual sex when both are under 16.
Why is that?
"you have yet to post the millions of kids prosecuted for having some kind of consensual sex when both are under 16.
Why is that?"
:-} Whatever.
Irrelevant. What is under examination is
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.
Whatever....yes....well, here's what the Kansas Attorney General said, as quoted in the article:
From this article (and it doesn't give a whole lot of detail on the state attorney's presentation, just the writer's interpretation of the judge's reaction to it!) it would appear that the state's arguments are of the "everybody knows it" variety rather than actual fact. If consentual sex among minors is harmful, it should be relatively easy to produce studies or statistics demonstrating that. For the judge to ask the state to do so doesn't seem to me to be unreasonable or to smack of some hidden pedophilic motive.
Oh my goodness... In New Hampshire it is illegal to walk with your shoes untied. The point being - common law "marriage" would require a 12 and 14 year old to live together outside of marriage and that just does not happen now a days so it is not a legal issue. In New Hampshire they don't prosecute or arrest the man with his shoe untied even though it is on the law books.
How would the judge feel if a 45 year old asked his 12 year old grandaughter over for a sleep-over?
And that is an inevitable consequence if 15 year olds are not permitted to grope?
Lots of things are formally illegal, but not prosecuted...until someone wants to prosecute for some reason.
For example, it's illegal in Kansas for kids under 16 to have sex with each other. Everyone knows it's going on, but there aren't prosecutions for this.
Ah...but, when the Mayor of Salina catches his 15-year-old daughter having sex with the 15-year-old son of a sharecropper, the law suddenly has someone to prosecute. That's a hypothetical case, of course, but similar things have happened many times across this country.
That's why vague, "unenforced" laws need to be taken off the books. They're "unenforced" until it's convenient for someone to use them to enforce some other agenda.
Now, you may think, as does the DA mentioned in the article, that some pimply faced boy feeling up his girlfriend is a crime. I don't think that way. But, under this law, a prosecution could take place. I'd hope the jury would laugh the case out of court, but you never know.
Think back on your teen years. Did you do anything you could have been prosecuted for while you were a teenager?
That should be And that is an inevitable consequence if 15 year olds are permitted to grope?
"no credible evidence that underage sex is always harmful."
Is this supposed to be a legal test? The question ought to be If the judge isn't a complete moron, he is certainly well on his way.
I did not address what I think about boys "feeling up" girls. This case is not about feeling up girls. It is about libeals muddying the waters on what was intended by the law - to protect other people's children from sexual secrets with amoral government officials and child molestors.
"I did not address what I think about boys "feeling up" girls. This case is not about feeling up girls. It is about libeals muddying the waters on what was intended by the law - to protect other people's children from sexual secrets with amoral government officials and child molestors."
Read the article. I'm writing about the article. Anything else is another discussion.
And how, pray tell, would a judge determine such a thing?
I mean, by using the legitimate tools of a judge, acting within his constitutional powers.
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