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.
The law is always on trial, basic precept.
Actually it is the legislatures conclusion. The legislature has seen fit to criminalize sexual relations with a person under the age of 16. Presumably they passed that law because they see sexual relations at that age as harmful to those under 16.
Thus, any evidence of sexual relations in that group of folks requires reporting. The reasonable would seem to only come in to play when deciding whether or not sexual realtions indeed happened. Pregnancy (read abortion), the root of the opinion and the court case would seem to be pretty solid evidence that sexual relations had happened. Since sexual relations under the age of 16 is criminal, the reporting of those relations is madatory.
The Attorney General's opinion is just that and the Tenth Circuit has already found his basis rational and overturned this Judges injunction.
All things considered, I'd be dead.
Then why bring it up ad nauseum?
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.
No what is under examination is the law passed by the Kansas Legislature.
The legislature has made it a criminal offense for children under 16 to have sexual relations.
There is no better evidence than that that they have found that sexual relations in those under 16 is harmful. They are the finder of the fact, not the courts, not you and not I. They have that power.
The law requires that professional people that are cognizant of the fact of sexual relations in those under 16 report it.
There is no exemption in the law. The law states "When any of the following persons has reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided in subsection." The legislature has already determined that sexual acts by those under 16 causes injury to those under 16. The only "reason" the professional has is in determining whetehr or not sexual realtions have occurred. If they have then the professionals in question are bound to report it by law whether, you, I or the Judge likes it or not.
Well then you should take comfort in the fact that a teenage boy feeling up his girlfriend is not what the case is all about. There are no Janet Reno stormtroopers hauling off the feelers or the felts. No young kids are being prosecuted and the birds and the bees still flourish in Kansas.
Ah, why don't we let juries with stakes in children decide and not some perverted corrupt judge commiting crimes in color of law?
Taking comfort in children who cannot vote nor represent themselves not harmful?
Convenient that the raped and murdered underage cannot decide to vote for such judges.
Disgusting.
I am flipping disgusted by the accepted brazenness of the fag party in power, partying their way on the top, on the back of exploited children on whom evil pervs like them party too.
We have passed a rubicon of corruption from which only severe consequences can occur if we attempt to reverse it. God help us.
If one assumes these assertions are correct, it not only shows that as the years have passed human standards have changed, it also illustrates that the Almighty Himself deemed a teen-aged girl old enough to bear a child, and more importantly, old enough to bear His Son.
And although human standards tend to vacillate irrationally, those of the Almighty do not.
However, the person under 16 isn't the person committing the crime. The law makes it a crime to have sex with an underage person, but the law doesn't punish the minor. The law punishes the adult. That's the big blunder in the 10th Circuit's opinion. The court concluded that minors have a right to informational privacy, but--since criminal activity is not protected by the right to privacy--minors don't have a right to privacy in their illegal sexual activity. This reasoning makes no sense unless you assume that the pregnant minor is the perpetrator rather than the victim of the supposed crime, which isn't at all how the law is either written or intended to be understood.
Anyway, according to the court, the district court didn't properly address other important preliminary injunction factors such as irreparable harm and balance of injuries. So it sounds to me like the injunction was rightly thrown out, but that's no indication of how the case will ultimately turn out. I expect the state will lose.
I agree with the judge regarding minor/minor sex. I don't think it's a good thing but it is not criminal. This is why most states have an age discrepancy clause (usually 2-3 years) in their statutory rape laws... and a minimum of age 12 for minor/minor sex not being a criminal offence.
Where I disagree is with adult/minor sex. This is clearly a danger and exploitative to minors and should remain criminal.
In statutory rape situations, the minor is not the one breaking the law. Only the adult is legally culpable.
Most states have laws on the books which allows for an age discrepancy between the parties of 2-3 years, where one is a minor and one is a legal adult.
Most states already have an age discrepancy clause built into their statutory rape laws. Generally 1-3 years, where one party is a minor and one party is a legal adult.
The objective of statutory rape laws is not to deter like-age teens from having sex with each other ... it is to deter adults having sex with minors.
This Judge lacks the maturity, morality and mentality expected of one in his position.
He needs to be pumping gas or flipping hamburgers-but only under close supervision.
What if the legislature decided pi = 3?
What if we strung together millions of grapefruits with det cord and exploded them in sequence, before time existed I might add?
Primarily public policy. The issue here is not 15 year olds groping in the front or back seat.
Another wannabe legislator in black robes.
Leave the bench and run for the state legislature, judge, if policy debates are your passion.
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