Judge favors youth privacy / LJWorld.com

Archive for Wednesday, April 19, 2006

AG’s attempt to increase reporting of sex is rebuffed

By Roxana Hegeman - Associated Press Writer

April 19, 2006

Wichita — In a decision hailed as a victory for adolescent privacy rights, a federal judge ruled Tuesday that health care providers and others are not required to report all underage sexual activity between consenting youths as sexual abuse.

U.S. District Judge J. Thomas Marten granted a permanent injunction in the case filed by the Center for Reproductive Rights, a New York advocacy group, in its constitutional challenge to Atty. Gen. Phill Kline's interpretation of the state's mandatory reporting law.

Marten ruled that a plain reading of the Kansas statute gives mandatory reporters discretion to determine whether to suspect a child has been injured as a result of sexual abuse.

"Contrary to defendants' claims, a prosecutor is not in a better position to make an initial determination of 'injury,' as required by statute, than is a health care professional," Marten wrote.

The lawsuit stems from Kline's 2003 opinion that the state's 1982 mandatory reporting law requires doctors, nurses, counselors, teachers and others to tell authorities about consensual sex by underage youths. In Kansas, the age of consent is 16.

The Center for Reproductive Rights contends that forced reporting discourages adolescents from seeking counseling and medical treatment and violates their right to informational privacy.

Kline and abortion

The attorney general's office contends the statute requires mandatory reporting because sex is inherently harmful to underage children.

Reaction to ruling

Simon Heller, attorney for the Center for Reproductive Rights, called the ruling an important victory for young people in Kansas and across the United States.

"It is the first ruling recognizing the United States Constitution gives protection - constitutional protection - to the informational privacy rights of young people in health care," Heller said.

Heller said such privacy rights already had been extended to adults seeking health care.

"Few, if any, courts have been asked to address this because no one prior to Phill Kline has ever even suggested that the government should have all information about sexual behavior that is being provided health care providers," Heller said.

Kline said he had not had a chance to read the opinion and had not decided whether to appeal it to the 10th U.S. Circuit Court of Appeals in Denver. Kline was in Washington on Tuesday, preparing for U.S. Supreme Court arguments on Kansas' death penalty law.

But Kline said of Marten's ruling, "It's not unexpected. It's what we've been predicting."

No change to law, policy

The ruling does not change the law or policy as it has been applied in Kansas since 1982, and upholds both, Marten said. Every case in which there is a reasonable suspicion of injury caused by abuse must continue to be reported to SRS. The case is not about whether adult sexual predators will escape detection, the judge said.

"This case certainly is not about promoting sexual promiscuity among underage persons. Each and every witness testified that underage sex should be discouraged. No witness suggested that sexual intercourse under the age of 12 should not be reported," Marten wrote.

"At the same time, a plain language interpretation of the reporting statute acknowledges the importance of the health care professional's ability to obtain and maintain a young patient's confidence in order to treat the patient appropriately," he wrote. "It recognizes that sexual activity among underage persons occurs, and that any such activity that injures the minor will be reported."

The Center for Reproductive Rights sued in 2003 on behalf of a group of obstetricians and gynecologists, registered nurses, psychologists, social workers, a family practice physician and a sex education teacher. Named as defendants were Kline and Sedgwick County District Attorney Nola Foulston, as representative of a class of all county and district attorneys in Kansas.

Kline's objectives

Kline said he's never sought to prosecute children who have consensual sex, only children who are victimized by adults. Without mandatory reporting, he said, law enforcement officials do not get the information they need to pursue cases.

"No one prosecutes consensual activity between children, and somehow claiming children are in jeopardy is nothing but a fear tactic," he said. "What children are in jeopardy of is no one reporting when they've been raped."

Kline noted that legislators last year approved a law requiring doctors who perform abortions on girls under 14 to preserve fetal tissue samples and send them to the Kansas Bureau of Investigation to aid in child rape investigations.

"The Legislature confirmed my opinion that the rape of a child hurts a child," Kline said.

Kansas law defines any sexual intercourse with a child under 14 as rape.

Foulston has not had a chance to read the opinion and will not comment, said Georgia Cole, spokeswoman for the Sedgwick County District Attorney's Office.

Heller said the Center for Reproductive Rights never challenged the appropriate obligation of health care providers to report real child abuse, only Kline's efforts to broaden the reporting statute to make it more restrictive.

"We are of course very pleased with Judge Marten's decision which permanently enjoins Kansas from enforcing this very intrusive invasion of the privacy and confidentiality of adolescents in Kansas," Heller said. "And we are especially pleased that the court recognized that when adolescents seek health care confidentiality ... is critically important."

The ruling also held that the Kansas reporting statute does not make all underage sexual activity inherently injurious and that it requires a person to have reason to suspect that the injury occurred from illegal sexual activity before reporting.

Associated Press writer John Hanna contributed to this report.

Discussion

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19 April 2006
at 6:08 a.m.

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Baille (Anonymous) says…

“Kline said he's never sought to prosecute children who have consensual sex, only children who are victimized by adults. Without mandatory reporting, he said, law enforcement officials do not get the information they need to pursue cases.”

The issue was never about whether Kline would prosecute such cases, but the fact he was mandating they be reporting. However, Phill has publicly stated more than once that two teenagers having sex are both criminals. They are both sexual abusers, and concurrently sexual abuse victims. There has been every indication that if not prosecuting them, he would advocate for or pursue some sort of state intervention.

“No one prosecutes consensual activity between children, and somehow claiming children are in jeopardy is nothing but a fear tactic,” he said. “What children are in jeopardy of is no one reporting when they've been raped.”

Liar. Li-ar. Mandated reporters must alredy report when children have been raped. They have to. There is no discretion when it comes to rape. Her comes the Kline spin.

Isn't it interesting that he accuses others of fear mongering when he says this: “Without mandatory reporting, he said, law enforcement officials do not get the information they need to pursue cases.”

There is nothing in the judge's ruling nor is anyone advocating doing away with mandatory reporting laws. Kline is the fear monger in this situation.

Mandated reporters still are mandated to report suspected physical abuse, neglect, emotional abuse, and sexual abuse. They are not mandated to report consensual sex between minors of a reasonable and like age, however, unless they have reason to believe that abuse is occurring as well.

And of course, my favorite Phill quote of the day: “”The Legislature confirmed my opinion that the rape of a child hurts a child.”

Great! Maybe next they will confirm your opinion the sky is blue, Phill. Criminy. When is the next AG election anyway?
19 April 2006
at 11:49 a.m.

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CommonSense4All (Anonymous) says…

Baile:

The facts that have been overlooked by you along with the rest of the media is that the 2003 Opinion by the AG was focused on whether Kansas' manditory reporting statute requires a heath care provider to report that a child has been raped.

The radical crazy right-wing opinion by Kline that has caused a liberal New York based activitist group to sue the State of Kansas is:

“Because sexual intercourse with any girl under the age of 16 is statutorily defined as “sexual abuse,” as a matter of law sexual abuse has occurred. We also reach the conclusion that sexual abuse of a child is inherently injurious, thereby triggering the mandatory reporting requirement.”
See: http://www.kscourts.org/ksag/opinions…

What these people and the judge are saying is that children have a constitutional privacy right to have sex, no matter how old they are, as long as they “want it.” Only if they didn't want it, then it is injurous. What that means is that statutory rape laws are unconstitutional. Watch, that is the next challenge.

And how can you blame Kline for this? He wrote a non-binding opinion based on a request (his duty as AG requires him to write such “opinions.”) It is a reasonable opinion that the rape of a child hurts a child. The New York group sued and Kline has to defend.
19 April 2006
at 1:53 p.m.

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Baille (Anonymous) says…

“What these people and the judge are saying is that children have a constitutional privacy right to have sex, no matter how old they are, as long as they “want it.” Only if they didn't want it, then it is injurous.”

No one has ever proposed such a ridiculous position. On the contrary, mandated reporters are seeking the common sense approach that has been the case since the law's inception and as articulated in Stephan's 1980's AG opinion on the issue.

Please note the following statements from Kline's Opinion:

“The Kansas Supreme Court has also recognized the purpose of “statutory rape” laws to be “protecting juveniles from improvident acts.”(35) The Kansas Legislature has determined that such improvident acts include sexual intercourse by minors under the age of 16, whether voluntary or involuntary. Such acts may thus reasonably be considered injurious as a matter of law. …

“We are aware that although this opinion is limited to the question posed [the abortion provider question], the consequences of the conclusion reach further. Other situations that might trigger a mandated reporter's obligation, because sexual activity of a minor becomes known, include a teenage girl or boy who seeks medical attention for a sexually transmitted disease, a teenage girl who seeks medical attention for a pregnancy, or a teenage girl seeking birth control who discloses she has already been sexually active.”

Kline's “non-binding” opinion is a good-faith basis to proceed with prosecution against a mandated reporter who fails to report two 15 year-olds consensual sexual activity. This is a vast departure from the old approach, and sent shockwaves through the state's population of mandated reporters.

It is nonsense, and legally indefensible. Kline can't claim innocence or “duty.” This is his “legal” opinion on the issue and as such it has consequences. Or did until the common sense appraoch prevailed.

As for your NAMBLA fear-mongering - it is just a red herring. Adult-child sex is inherently harmful and there is no reasonable basis that would excuse failure to report such abuse.

It is NOT being argued that the rape of a child is not abuse. It is being argued that consensual sex between teenagers of a like age should not trigger reports to the state or state intervention. Kline has stated publicly at least twice that sex between two teenagers of a like age IS inherently harmful and DOES trigger the mandatory reporting laws. That position has rightly been invalidated with this judicial decision.
19 April 2006
at 4:15 p.m.

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CommonSense4All (Anonymous) says…

you obviously have no idea what you are talking about when you say “Kline's non-binding opinion is a good-faith basis to proceed with prosecution against a mandated reporter who fails to report two 15 year-olds consensual sexual activity. This is a vast departure from the old approach, and sent shockwaves through the state's population of mandated reporters.”

Anyone who has practiced law knows that an AG opinion has no legal authority in court. Even a first year law student is taught that. It is nothing more than an opinion of the law that is issued by the AG at the direction of the legislature.

Furthermore, the section you quoted says nothing about reporting sexual contact between minors, it merely says that minors presenting with an STD, etc, may also need to have the situation reported. (ie/ Stepdad gives her an STD insted of a baby).

Kline has been crystal clear that he is not interested in prosecuting minors that have sex with each other. He has said that a thousand times, but I guess you only hear what advances your cause. Kline is only concenred when a child has been sexually abused by an adult.

Quit your spin and shoot straight.
19 April 2006
at 4:37 p.m.

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CommonSense4All (Anonymous) says…

as for your naive (at least I hope that's what it is) statement that this is just NAMBLA fear-mongering and that this is not about eliminating statutory rape law, the federal court actually said in the opinion in footnote 13:

“The court finds Dr. Kellogg's testimony to be particularly insightful and compelling … Dr Kellogg testified that (1) Not all underage sexual activity, including intercourse, is injurious; (2) Appropriate sexual activity, which will vary from person to person, is part of a normal person's development…”

That says it all. Coupled with the courts finding that a child has a constitutional right of privacy to have sex, then the logical conclusion is that statutory rape laws are unconstitutional.

This is what we as a nation are now up against, thankfully Phill Kline is standing up and saying STOP the insanity!
19 April 2006
at 6:08 p.m.

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Baille (Anonymous) says…

“Anyone who has practiced law knows that an AG opinion has no legal authority in court. Even a first year law student is taught that. It is nothing more than an opinion of the law that is issued by the AG at the direction of the legislature.”

I never said that it was legally binding precedent. While I know that it is tempting to make up arguments on my behalf to help you more easily address them, that isn't exactly a debate. It sounds more like right-wing radio.

The worry in the mandated reporter circles was that Kline's opinion would lead to complaints being filed against mandated reporters and/or charges filed against them for failure to report abuse as defined by Phill. As you should know if you are going to play at beinga lawyer, KSA 38-1522 makes wilfull failure to report abuse a Class B misdemeanor. Kline's opinion, while obviously not “binding legal precedent” does, however, give a prosecutor a good-faith basis on which to file suit. This good-faith basis is not so important for the prosecutor, who as you may know enjoys qualified immunity, but does cause worry amongst the mandated reporters who rightly fear a zealot like Kline getting elected as DA of some district and then using Kline's dubious legal reasoning to start making mandated reporters report teenagers having sex. In the wake of your statutory-rape-is-unconstitutional paranoia, that seems more likely to me than it did even 2 hours ago.

As for the section of Phill's opinion that I quoted, an STD may be evidence of stepdad having sex with kid. It may also be evidence of boyfriend having sex with girlfriend. One is abuse. One isn't. Under Kline's view both scenarios would require reporting and could lead to state intervention. Under the correct reading of the law, the mandated reporter would have the freedom and flexibilty to make that decision for t hemselves.

Furthermore, there is nothing in footnote 13, that would make sex between an adult and child non-abusive. It simply reasserts the common sense notion that teenagers have sex and that such things occur naturally and are not inherently injurious to the extent that such would qualify as sexual abuse. If Kline is only concerned about kids having sex with adults then he had all the tools he needed to deal with that so far as tha mandatory reporting laws are concerned. Knowledge of any adult having sex with a child must be reported and that has always been the case.

Statutory rape laws are unconstitutional? That is absurd. That is no more a logical progression that to conclude based on the court's findings that brown cows give chocolate milk.
19 April 2006
at 6:21 p.m.

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Baille (Anonymous) says…

What? Where do I support nambla? Do you people not get it?

Adult + child + sex = childhood sexual abuse + mandatory reporting.

Jack + Diane + outside the tastee freeze = sex + nobody's business but Jack's, Diane's and their parents.

I support this ruling because it gives trained and experienced individuals the freedom and flexibility to work with teenagers, and keeps that state's overreaching well away from my family and my kids. That is a liberal position? Oh wait - I am sorry. A libtard (?) position?

Geeze. Sometimes I can't believe Lawrence is a college town. Where do you people come from and why do you come here?

19 April 2006
at 7:26 p.m.

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xenophonschild (Anonymous) says…

Conservative-puke isn't from Lawrence; he's one of those retired military fuddy-duddies mired in Leavenworth.
20 April 2006
at 8:24 a.m.

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CommonSense4All (Anonymous) says…

Ballie, you actually hit the issue:

“As for the section of Phill's opinion that I quoted, an STD may be evidence of stepdad having sex with kid. It may also be evidence of boyfriend having sex with girlfriend. One is abuse. One isn't. Under Kline's view both scenarios would require reporting and could lead to state intervention. ”

Well said. That is correct. And what I am saying is that the reason both should be reported is that the doc, nurse, teacher, etc. does not have the resources to know which case it really is, but the police do.

This is obviously a public policy decision that has been made by the body elected to make those decisions, the legislature, not some federal judge.
11 July 2006
at 2:39 p.m.

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moderation (Anonymous) says…

How could suffering get by us? By: Mark McCormick
Posted on Fri, Jul. 07, 2006 - Wichita Eagle

Two little girls. Four pregnancies. One set of twins, born on their mother's 12th birthday.

A stepfather facing a bench trial in Sedgwick County later this month for multiple attacks on both girls that prosecutors say resulted in the pregnancies.

A mother who pleaded guilty and was sentenced to 14 months in prison — a departure from probation — because she knew about, yet did nothing to stop, the abuse. “It's a real tragedy,” said Attorney General Phill Kline of the case, “but this is what we see. This is the truth of the issue.”

Many of these cases escape our notice for far too long. That these two little girls suffered through years of unspeakable abuse speaks to Kline's repeated assertion that our current system of reporting pregnancies and abortions for girls under 15 is insufficient. “Where there is force or a deviation in age, we're going to prosecute it,” he said. “But we can never learn that unless someone reports it.” We need more reporting and less reliance on the child victim's common yet false claims that the person having sex with her is close to her age. We've given rapists the magic words to avoid detection, Kline said, since prosecutors don't pursue such “age-mate” cases.

Details about this case weren't available, but there had to have been multiple opportunities for someone to intervene.

Someone at school who noticed the heartbreak on the girls' faces, their frequent absences or their swollen stomachs. Someone administering the girls' prenatal care. Someone present for the delivery of the twins or for the abortion of the other girl's first child. But because no one said anything or because no one listened — take your pick — these two little girls suffered. For years.

…continued
11 July 2006
at 2:40 p.m.

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moderation (Anonymous) says…

…resumed

By now, law officials said, the girls have delivered the babies from their second pregnancies. Mike Deines, spokesman for the Kansas Department of Social and Rehabilitative Services in Topeka, said agency social workers field phoned-in reports and then try to determine whether a report warrants further investigation. “Our mission is to protect children,” Deines said Thursday. “That is our number-one mission. We do everything we humanly can to make sure children are safe and that we're asking the tough questions.” I believe him. I'd find it difficult to believe that anyone wouldn't do all that they could to protect girls from these horrible attacks. But I also believe that these cases get by us, that we could do more, and that there's a little girl, somewhere, suffering right now.

Consider that before two men found pregnant, 14-year-old Chelsea Brooks in a shallow Butler County grave last month, Wichita police were investigating allegations that she was a victim of a sexual predator. Officials were waiting for the birth of her child so they could conduct a paternity test, District Attorney Nola Foulston said.

But someone strangled Chelsea before then. And then there's the case Kline referenced: Two little girls. Four pregnancies. One set of twins, born on their mother's 12th birthday. A stepfather accused. A mother who looked the other way. How could we not be doing all that we could to make sure this never happens again? How could something so horrible get by us? How could we not see a hole in the system so large that all of these innocent little lives could slip through it?

Reach Mark McCormick at 316-268-6549 or mmccormick@wichitaeagle.com.
11 July 2006
at 2:41 p.m.

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moderation (Anonymous) says…

This is the type of tragedy Attorney General Phill Kline is fighting to prevent. And the media, abortion clinics and Kline-haters label it “Kiss and Tell.” What a disservice to the people of Kansas to cheapen such a critical issue.
11 July 2006
at 3:10 p.m.

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craigers (Anonymous) says…

moderation I agree.