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Judge: No credible evidence underage sex always harmful
Witchita Eagle ^ | 2/9/6 | ROXANA HEGEMAN

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.


TOPICS: Culture/Society; US: Kansas
KEYWORDS: jthomasmarten; judge; moralabsolutes; pedophilia; phillkline; thomasmarten; underage
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To: jwalsh07
Let me fix my question:

Do you agree with the state attorney general that any time a person under 16 has sex, that person is the victim of sexual abuse (meaning a 15-year- old having sex with another 15-year-old is both a victim of sexual abuse *and* a sexual abuser subject to prosecution)?

151 posted on 02/11/2006 12:58:46 PM PST by Sandy
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To: Sandy
No, of course not. But I do think that the Kansas legislature has the power to be the finder of facts in these cases. Certainly, a federal judge is no better equipped than the citizens of Kansas to decide this matter. And that is how I think the Tenth Circuit should come down.

Thanks for the link, I haven't read the full decision, only excerpts.

152 posted on 02/11/2006 3:16:25 PM PST by jwalsh07
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To: frogjerk
Let's see: teen pregnancy, STD's and the psychological effects of intimate sex... that's not harmful to minors. And let's not forget the financial consequences and the destruction of dreams of making it in the world. No credible evidence of harm from teen-age sexual activity, huh? The judge is a blithering idiot who ignored real-world evidence.

(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")

153 posted on 02/11/2006 3:19:48 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: photodawg
Heck, sex between adults and children isn't harmful either, right Judge Marten. Where you propose to draw the line your Honor?

(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")

154 posted on 02/11/2006 3:22:20 PM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: ZGuy

Time to check the judge's sock drawer...


155 posted on 02/11/2006 3:25:04 PM PST by Stultis (I don't worry about the war turning into "Vietnam" in Iraq; I worry about it doing so in Congress.)
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To: starfish923
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.

Aggreed there is a huge difference between teens having sex and pre-pubescent children. Not so long ago a girl was an old maid if she was not married by the time she was 20.

I like what the apostle Paul said about two people who were having sex. "let them marry".

When I was in high school a girl and her boyfreind got married at 16. Today they are still married after 23 years, and have three children.

Of course they said to me that if both sets of parents had not allowed them to marry and supported them, they would have ended up having children out of wedlock. A very bad sin.

I have to say that if I had a daughter and she was 15 or 16 and a young man wanted to marry her I would consider it on the following criteria...

Is he a Christian man in good standing with the Church? (must be a yes answer).

Does he work hard? (Must be a yes answer)

Does he drink Alcohol or take drugs? (Answer better be "NO")

Are his parents good Christians in good Standing in the Church and do they approve of the marriage? (must be yes and yes).

I know it is old fashioned but completely allowable under God's laws to allow a teenager to marry. It is not sinful or wrong in any way. Now if you are a parent and you allow your son or daughter to run around alone with people of the opposite sex without supervision you are a fool.

Like my preacher says, you take a young boy and a girl and put them together alone, don't be suprised if a baby is on the way.

156 posted on 02/11/2006 3:44:52 PM PST by ColdSteelTalon
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To: Galveston Grl

since world war 2 I think only Kentucky. Before 1860 practically everywhere.


157 posted on 02/11/2006 6:53:26 PM PST by bigsigh
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To: mlc9852

I always equate slavery with having sex don't you?


158 posted on 02/11/2006 6:54:05 PM PST by bigsigh
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To: All

The point I was making boys and girls was that it's wasn't Kensey who started "underage" sex. If underage means say 12-16.


159 posted on 02/11/2006 6:54:56 PM PST by bigsigh
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To: jwalsh07

Is it necessary to label it a crime to do that?


160 posted on 02/11/2006 8:55:21 PM PST by Torie
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To: bigsigh
You can cry Kinsey all you want, but not long ago 12 year olds could legally marry. PS: I think that means they could have sex with their spouse.

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.

161 posted on 02/11/2006 9:01:47 PM PST by jamaly (I evacuate early and often!)
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To: jamaly

I guess I'll have to yell my point before anyone gets it.


162 posted on 02/11/2006 10:56:08 PM PST by bigsigh
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To: bigsigh

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.


163 posted on 02/12/2006 2:00:57 AM PST by mlc9852
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To: bigsigh

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'..." : )


164 posted on 02/12/2006 6:16:41 AM PST by Galveston Grl (Getting angry and abandoning power to the Democrats is not a choice.)
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To: Galveston Grl

Yes and MY POINT IS taht means Kinsey did not invent or discover sex with "underaged" teens. What is your point?


165 posted on 02/12/2006 9:42:05 AM PST by bigsigh
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To: mlc9852

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?


166 posted on 02/12/2006 9:43:08 AM PST by bigsigh
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To: mlc9852

We're way off track already, but surely you're not blaming sex with 16 year olds on Kinsey, or are you?


167 posted on 02/12/2006 9:43:59 AM PST by bigsigh
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To: bigsigh

I never said anything about Kinsey.


168 posted on 02/12/2006 10:28:07 AM PST by mlc9852
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To: bigsigh

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... : )


169 posted on 02/12/2006 12:12:53 PM PST by Galveston Grl (Getting angry and abandoning power to the Democrats is not a choice.)
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To: ZGuy

""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.


170 posted on 02/12/2006 12:14:50 PM PST by CodeToad
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To: Mighty Eighth
Those Old's 98's had big seats, didn't they?

Lord, that brings back memories...

171 posted on 02/12/2006 12:17:13 PM PST by ReaganCowboy (History books are written by winners.)
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To: ZGuy
Only a fool uses the word always.
172 posted on 02/12/2006 12:17:28 PM PST by auboy (Charles Shumer's mainstream is actually a mud puddle in his own mind)
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To: ZGuy

Ift can be very harmful when the kid's father gets a hold of you and punches your lights out ...


173 posted on 02/12/2006 12:20:01 PM PST by John Lenin
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To: r9etb; ZGuy

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.


174 posted on 02/12/2006 12:30:13 PM PST by NicknamedBob (Well, we had Uncle Joe. Then we had our Uncle Ho. Now it looks like we have an Uncle Mo.)
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To: TChris

Come to think of it, I've never seen clear and convincing evidence that murder is always harmful.


175 posted on 02/12/2006 12:30:31 PM PST by PeoplesRepublicOfWashington (How long do we have to pretend that Democrats are patriots?)
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To: NicknamedBob
I don't think attacking the judge's character is helpful. He seems to have a knotty problem on his hands.

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.

176 posted on 02/12/2006 1:43:59 PM PST by r9etb
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To: r9etb
"... forced reporting discourages adolescents from seeking counseling and medical treatment ..."

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?

177 posted on 02/12/2006 2:01:41 PM PST by NicknamedBob (Well, we had Uncle Joe. Then we had our Uncle Ho. Now it looks like we have an Uncle Mo.)
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To: NicknamedBob
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.

178 posted on 02/12/2006 2:05:21 PM PST by r9etb
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To: r9etb

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.


179 posted on 02/12/2006 2:09:34 PM PST by NicknamedBob (Well, we had Uncle Joe. Then we had our Uncle Ho. Now it looks like we have an Uncle Mo.)
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To: Torie

Evidently it is. If Roe was overturned it wouldn't be. Puzzle that out sensei. :-}


180 posted on 02/12/2006 4:38:21 PM PST by jwalsh07
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To: jwalsh07
That puzzle reminds me of that garden maze in The Shining. If I went in, I might never get out. Isn't Roe more about pregnancy than sex? Are not the two not co-extensive thanks to the pill et al?

How much snow is there in beautiful northeastern Connecticut? Is the book still in the twilight zone? Man, I learned a lot from it, disorganized though it was.

181 posted on 02/12/2006 4:42:56 PM PST by Torie
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To: jwalsh07
By the way, I don't think the legal elite is as interested in young teenagers screwing their brains out, as they are in covering up the evidence thereof. The privacy penumbra is like a Rorschach blot.
182 posted on 02/12/2006 4:47:14 PM PST by Torie
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To: Torie
Depends, some got two feet, others 15 inches or so. We are on the low end where usually we are on the high end. But the snow has very low water content. The blizzard of ought 6 wasn't as bad as the foot of heavy wet stuff we got last storm. The up side? It's pretty, there will be fewer heart attacks than with wet snow, Februrary was mild so the gorund is not as frozen as usual which means a quicker melt on the golf courses. Barring any more "blizzards" that is. :-}

No signs of the book, I spoke to the gal yesterday. She hasn't seen it. She thinks it must have been RTS, that's you. But I am looking forward to it....

Whatever the hell it's about.

183 posted on 02/12/2006 4:56:18 PM PST by jwalsh07
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To: Galveston Grl

In Kentucky until after world war 2 is that recent enough?


184 posted on 02/13/2006 3:04:23 AM PST by bigsigh
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To: mlc9852

Your're all replying to comment and I put my original comment into the context into which it was made.


185 posted on 02/13/2006 3:05:07 AM PST by bigsigh
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