Embrace the True Path 
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.
Here's a judge who rejects the legislator's conclusions that, for reasons the LEGISLATOR decides to accept, certain acts should be illegal.
IOW, his whole approach is "I disagree with the law" so I don't have to uphold it. I can be a super legislator. I can disregard the judgement of the people's elective representatives since I know better.
This is what the libs want: judges who simply feel they do not have to follow the law if they don't want to.
Embrace the True Path
Where does it say it's necessary for the state to prove it's harmful?
Isn't it the job of the legislature to write the laws, and the judiciary to find if activities conform to these laws?
Rather than trying to decide whether the law is justified or not?
Clinton strikes again. His appointments are like a systemic disease. They just keep coming back again and again.
I remember the old bumper sticker "It's not the Mayflower, but your daughter came across in it".
No controlling coital authority??
good, if they are mature enough to choose to have sex legally they are mature enough to execute when they kill someone.
This is none of the judge's business.
Whether it is always harmful, sometimes harmful, or never harmful is immaterial. The people of Kansas, acting through their representatives, have determined to outlaw this behavior. There is no Constitutional restraint on their power to do so.
Therefore, the factual or actual consequences of the behavior are not an issue.
"Here's a judge who rejects the legislator's conclusions that, for reasons the LEGISLATOR decides to accept, certain acts should be illegal.
"
Actually, that's not what he did at all. The law is written poorly, in that it does not specify which acts must be reported. Two district attorneys had different ideas, with one of them believing that even teenagers fondling each other should be included under this law.
The problem is that the legislature did not write a proper law. Laws involving criminal liability must be specific in describing whatever acts they consider criminal. This law did not do that.
If a D.A. can prosecute a couple of teenagers who are groping each other a little in the back seat of their car, it is a bad law, since that's a pretty universal practice...one which no law will ever be able to prevent.
In Europe and Britain today (and most of the world), young teens not going to the university will start work-study apprentice programs at 14 or 15.
No reason why girls can't marry at 16 or 17. Some are really quite ready to do so. Some do, though I suppose their husbands are, therefore, guilty of statutory rape if they are 18 and have sex with their fiance before marriage. Pretty hard to see some 16-17 year old female teens as "underage" for sex -- especially with 18-year-old men. Hard to see some 16-17 year old teen males as "underage" for sex.
We have very mixed messages in our laws about teens, further confused by individual state laws that contradict other states--driving, drinking, voting, enlisting, marrying, working.
I'm not offering any solutions but it wouldn't be a terrible thing to RE-THINK the sex thing and age of consent for teens under 18.
Yep. I agree. Teachers and health care workers deserve some right to confidentiality in their relationships with teens. And while I agree that underage teens ought to refrain from sex, I do not wish to make them criminals. On the other hand, I believe have a moral duty to report cases involving abuse and coercion.
It's not the judge who is doing the rejecting
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.
The Attorney General then declared its all harmful, and wants any distincition wrttten in law to be ignored and instead wants his personal opinion enforced as law.
Then Sedgwick County District Attorney agrres with the arbitary principle, but has a different personal opinion on what is covered.
Rule by the personal whim of the State Offical, instead of Rule of Law
Your problem is with the process. You don't agree with the law Kansans have passed so you think the divine judges can amend it and that's just fine. In this case it appears that that opinion will not carry the day.
"No reason why girls can't marry at 16 or 17. Some are really quite ready to do so. Some do, though I suppose their husbands are, therefore, guilty of statutory rape if they are 18 and have sex with their fiance before marriage."
All of this depends on state laws. In most states in this country, the age of consent is 16 or 17, so girls (and boys) of that age can have sex with whomever they wish, aside, in most cases, with teachers.
There are a few states with an age of consent of 18, but not a lot.
So, the Sophomore or Junior in high school, in most states can have sex whenever he or she wants to. That's the law. They can also marry.
Check the laws in your state here:
http://www.ageofconsent.com
I'm not sure it's possible to write a law that is narrow enough to protect kids and teens and yet leave them some privacy. If my 13 year old son told a coach that he was having sex with anyone, I think I should be told. I wouldn't classify it as a criminal matter.
If my child reported being coerced (but not necessarily forced) into sex by anyone of any age, I should be told, and it may be a crime depending upon the age of the other person.
If, at 16, my son tells a coach he's having sex with a 16 year old girl, as long as there is no disease or pregnancy involved, I think it isn't something I need to know. If he were having sex with a 16 year old boy, I would want to know. I wouldn't classify this as a crime either, but I would be concerned for my son and I'd want to talk about it.
Sad day for you and your fellow activists, eh?
And slavery used to be legal also.
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