Judge: No credible evidence underage sex always harmful

Witchita Eagle ^ | 2/9/6 | ROXANA HEGEMAN

[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.

[Politicalmom]

When people's life expectancy was about 40 or a little more, early marriage was necessary. My 12 year old son still plays with Legos.

[wouldntbprudent]

I stand corrected, having read the article too quickly.

You are both right. Thanks for the nudge.

[annelizly]

Boy...if we believed this law then my grandparents were criminals and my mother shouldn't have even been made!
(my grandmother was 13 and married to my grandfather)

[mlc9852]

Very excellent point!

[unlearner]

I think the judge is right about age of consent, but wrong about his right to veto laws based on subjective opinion. The legislature can act on its opinion whether it is substantiated by research or not. They are elected to represent the people. The judge's job is to make sure the law is enforced.

Modern age of consent laws came about when Christians were duped into going along with feminists who pushed for them (in the late eighteen hundreds). They claimed that there was an epidemic of young girls being taken advantage of by older men, and that the laws were necessary to stop this.

There is no age at which it is morally acceptable to consent to sex outside of marriage. And there is nothing morally wrong with someone under eighteen getting married with parental consent.

[doc30]

it is a crime for minors under 16 to have sex

This is the stupidest law I've ever heard. If that is indeed the case, then easily half of the teenagers in Kansas are felons and, quite likely, the lawmakers who voted for this bill! Minors with an adult is one thing, but two kids making out is a criminal offense? I don't agree with underage sex, but it happens and it isn't going to stop no matter how many laws you pass.

[ThisLittleLightofMine]

I would be more worried about the 30 known STD's. Parents need to educate their children about the real dangers of sex outside of marriage.

[Wurlitzer]

""If you tell me because it is illegal - I reject that." I think this is a definitive quote from an activist judge. I couldn't be more clear. This jurist is not interested in applying the law, but in creating or ignoring it. "

You've got that right TChris. What on earth has created millions of people with views such as this? I don't think the Founding Fathers had this in mind when they created the wall of protection around judges. Judges like this MUST be removed from the bench.

[SoFloFreeper]

CLINTON APPOINTEE

Marten, John Thomas

Born 1951 in Topeka, KS

Federal Judicial Service:
U. S. District Court, District of Kansas
Nominated by William J. Clinton on October 18, 1995, to a seat vacated by Patrick F. Kelly; Confirmed by the Senate on January 2, 1996, and received commission on January 4, 1996.

Education:
Washburn University, B.A., 1973

Washburn University School of Law, J.D., 1976

Professional Career:
Law clerk, Justice Tom Clark, Supreme Court of the United States, 1976-1977
Private practice, Omaha, Nebraska, 1977-1980
Private practice, Minneapolis, Minnesota, 1980-1981
Private practice, McPherson, Kansas, 1981-1996

Race or Ethnicity: White

Gender: Male

>Marten, John Thomas

Born 1951 in Topeka, KS

Federal Judicial Service:
U. S. District Court, District of Kansas
Nominated by William J. Clinton on October 18, 1995, to a seat vacated by Patrick F. Kelly; Confirmed by the Senate on January 2, 1996, and received commission on January 4, 1996.

Education:
Washburn University, B.A., 1973

Washburn University School of Law, J.D., 1976

Professional Career:
Law clerk, Justice Tom Clark, Supreme Court of the United States, 1976-1977
Private practice, Omaha, Nebraska, 1977-1980
Private practice, Minneapolis, Minnesota, 1980-1981
Private practice, McPherson, Kansas, 1981-1996

Race or Ethnicity: White

Gender: Male

[Mr. Blonde]

I was thinking the same thing. If groping a girl could get you sent to jail a lot of teenage boys would become suicidal thinking they have nothing to live for.

[redgolum]

Was listening to a radio show on the way home last night. They had a doc on that was talking about the chemcial and phycological effects of love and sex. Basically, the hormones produced do to sex have a "bonding" effect. But the more partners you have the less powerful it is. Your brain becomes desensitized to it.

Makes a good case for waiting till marriage.

[rzeznikj at stout]

Yes and no. Yes, there should be some discretion between teachers and teens--after all, there is discretion at every juncture of the criminal justice system--including the public. And this is assuming the nature of the relationship in question is consensual.

However, if we're looking at kids, and I'm not referring to high-school age people, or in cases of harassment, then clearly there exists a moral and legal obligation to report those cases.

[GrandEagle]

I would be more worried about the 30 known STD's.
Absolutely! If memory serves me correct, the last statistic I read was that 3 out of 5 college students now has or has had an STD.
My 10 year old is very aware of the dangers. She and I talk about it all the time and I let her read the statistics and about what these diseases can do.
Cordially,
GE

[rzeznikj at stout]

This was the problem that Massachusetts faced in Eisenstadt v. Baird. The Court ended up chucking a statute requiring drugs to be issued only by licensed professionals when it struck down the ban on issuing contraceptives to single individuals.

[MineralMan]

"I was thinking the same thing. If groping a girl could get you sent to jail "

Or being groped by a girl. It works both ways. Remembering my teenage years, I seem to remember a lot of groping, all consensual.

[Owen]

Dood, you're the only one that mentioned abortion. The scenario painted is simply that sex the day before an 18th birthday rose to the notice of someone only, because a girl asked for a pregnancy test -- several months later.

If it makes you more comfortable, maybe it rose to the notice of someone because she asked that someone if it was okay for her to pray for her lover and mentioned the date they became lovers.

This has nothing to do with her wanting or not wanting an abortion. This is very strictly and narrowly a question of whether or not someone is granted discretion not to prosecute two 17 yr olds who had sex the day before their 18th birthdays.

[rzeznikj at stout]

That's a chilling statistic that not a lot of my peers still don't realize.

I'm currently a college student. And sex pervades campus like you wouldn't believe.

<>My 10 year old is very aware of the dangers. She and I talk about it all the time and I let her read the statistics and about what these diseases can do.

Excellent to hear!

[MineralMan]

"This was the problem that Massachusetts faced in Eisenstadt v. Baird. The Court ended up chucking a statute requiring drugs to be issued only by licensed professionals when it struck down the ban on issuing contraceptives to single individuals."

---

Yup. I'm old enough to remember when all condom packages were marked, "For prevention of disease only." That was in California in the early 1960s. It was a holdover from the old anti-contraception days.

As a teenager, I couldn't buy them at all until I was 21 in California. If you needed condoms, you had to find a friend over 21 to buy them for you.

Did that stop the kids in my high school from having sex? It did not. We had a number of pregnancies in my class of 106 kids. How many, I can't be sure. Some went to "stay with their aunt." Others had abortions from the doctor in town everyone knew would take care of "late periods." Others got married while still in high school. Only a couple actually had babies while single.

[D-Chivas]

I get the impression that a number of people didn't read this article. The judge is correct.

[Psycho_Bunny]

Yes...and if you read the article, that's what the judge was saying.