Skip to comments.Judge: No credible evidence underage sex always harmful
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.
My guess is that it has been at least 60 years or more since that was legal. Remember in the 1950s Jerry Lee Lewis married his cousin who was 13 or14. The press had a fit and so did the public.
I guess I'll have to yell my point before anyone gets it.
Maybe you missed the point. The poster said marriage at 12 used to be legal and we said slavery used to be legal also but that didn't make it right. I don't know of anyone who would equate sex and slavery.
Oh, so it was not recently that twelve year olds were getting married in the US. It was back in l860. As I said, "you were just sayin'..." : )
Yes and MY POINT IS taht means Kinsey did not invent or discover sex with "underaged" teens. What is your point?
And why was it wrong for 12 year olds to marry in the early 1800s and before. And how do you equate that with slavery?
We're way off track already, but surely you're not blaming sex with 16 year olds on Kinsey, or are you?
I never said anything about Kinsey.
I never said anything about Kinsey, the pervert who molested kids to see if tolerated it. I was addressing your statement that 12 years old were marrying not so long ago. If 1860 is not so long ago... : )
""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.
Someone needs to check that pervert's computer for child porn.
Lord, that brings back memories...
Ift can be very harmful when the kid's father gets a hold of you and punches your lights out ...
With one breath we condemn school administrators for their "zero tolerance" protocals which absolve them of using common sense, and with our next we condemn a judge who seems to require it.
I don't think attacking the judge's character is helpful. He seems to have a knotty problem on his hands. I wouldn't want to be the one who had to untangle it -- without a sword.
Come to think of it, I've never seen clear and convincing evidence that murder is always harmful.
To be quite honest, I have to think the judge's "knotty" problem is precisely as I suggested it was. Either that or he's a God-damned fool.
This is reporting to authorities, not to parents. I do agree with the judge that sometimes sexual adventurism should not automatically be considered criminal. The judge is, I believe rightly, insisting that a certain level of adult understanding be implemented.
Do you not see the parallel with school "authorities" over-reacting about pictures of guns, and about children in first grade giving out kisses?
Not particularly. For one thing, one does not get VD or pregnant from those things.
I was not speaking about the activity. I was addressing the reaction to the activity.
It is my opinion that many times an overblown reaction does more harm than the results of specific activities may cause.
And I am devoutly in favor of more common sense being required of everyone.
Evidently it is. If Roe was overturned it wouldn't be. Puzzle that out sensei. :-}
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