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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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1 posted on 02/10/2006 6:52:39 AM PST by ZGuy
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To: 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.

What Kinsely has wrought.

2 posted on 02/10/2006 6:56:24 AM PST by frogjerk (LIBERALISM: The perpetual insulting of common sense.)
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To: ZGuy
"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.

3 posted on 02/10/2006 6:57:14 AM PST by TChris ("Unless you act, you're going to lose your world." - Mark Steyn)
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To: ZGuy
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.

Therein lies the problem. Facially neutral but gender biased in application.

4 posted on 02/10/2006 6:57:55 AM PST by peyton randolph (As long is it does me no harm, I don't care if one worships Elmer Fudd.)
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To: frogjerk
Oops, should read "What Kinsely Kinsey has wrought".
5 posted on 02/10/2006 6:58:09 AM PST by frogjerk (LIBERALISM: The perpetual insulting of common sense.)
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To: ZGuy

Almost makes you wonder if Judge Marten has a thing for young girls (or boys), doesn't it?


6 posted on 02/10/2006 6:58:53 AM PST by r9etb
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To: ZGuy
Judge Marten, there is also no credible evidence that prostitution is always harmful.

There is no credible evidence that underage driving is always harmful.

There is no credible evidence that drug use is always harmful.

There is no credible evidence that polygamy is always harmful.

There is no credible evidence that underage alcohol consumption is always harmful.

7 posted on 02/10/2006 6:59:23 AM PST by Sgt_Schultze
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To: ZGuy

Judge Marten sounds like a card carrying member of NAMBLA.


8 posted on 02/10/2006 6:59:34 AM PST by Dante3
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To: ZGuy

District (Federal) Judge ..V.. Kansas (state)
States Rights on the chopping block again !


9 posted on 02/10/2006 6:59:39 AM PST by IrishMike
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To: ZGuy

Absolutely disgusting!


10 posted on 02/10/2006 7:00:02 AM PST by Shery (S. H. in APOland)
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To: frogjerk

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.


11 posted on 02/10/2006 7:01:25 AM PST by bigsigh
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To: ZGuy
In the context of the article, the judge is correct.
12 posted on 02/10/2006 7:01:35 AM PST by Psycho_Bunny (Women were put on Earth to look hot. Men are here to be stupid about it.)
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To: ZGuy

"Foulston testified that any underage sexual contact between minors, such as the fondling of a girl's breasts, needs to reported. "

Oh, please! Two high school kids groping each other in a car is a crime, now? My word!

I guess most of us were criminals, then, when we were teenagers.

That's the trouble with such laws. While they mean well, they fail in their purpose if they are this inclusive. Yes, cases of sexual abuse of minors should always be a criminal act.

Getting felt up in a car by your boyfriend, however, doesn't fit the description.

When will lawmakers learn that laws need to be specific? Laws that overgeneralize the description of an act are always subject to being thrown out. Describe what you want to be against the law, and in detail, or risk the entire law being tossed.


13 posted on 02/10/2006 7:02:34 AM PST by MineralMan (godless atheist)
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To: Alexander Rubin; An American In Dairyland; Antoninus; Aquinasfan; BIRDS; BlackElk; BlessedBeGod; ...
MORAL ABSOLUTES PING.

DISCUSSION ABOUT:

"Judge: No credible evidence underage sex always harmful"

There is no "evidence" that some unelected judge gets to make law, it's high time this judicial anarchy is ended!

---------------------------------------------------------------------------------------------------------

To be included in or removed from the MORAL ABSOLUTES PINGLIST, please FreepMail either MillerCreek or wagglebee.

14 posted on 02/10/2006 7:02:54 AM PST by wagglebee ("We are ready for the greatest achievements in the history of freedom." -- President Bush, 1/20/05)
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To: frogjerk

There is a small town nereby where I live that right now has 14 girls pregnant. Their entire student body is only 250! That includes 2 15-year olds and one 14-year old.

Of course, then there is the every present possiblility of VD and psychological ramifications.

Thanks "Judge". May you be held accountable when you stand before God.


15 posted on 02/10/2006 7:05:37 AM PST by Jerry Attrick (<B>)
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To: ZGuy

Clinton appointee.


16 posted on 02/10/2006 7:06:27 AM PST by superdad
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To: ZGuy
the attorney representing the Center for Reproductive Rights,
AHHH! Now I understand it!
Underage Sex = More abortions = more baby body parts to sell = more money in the pocket.
17 posted on 02/10/2006 7:08:53 AM PST by GrandEagle
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To: ZGuy

This is what I've heard Dr. Laura say many times (paraphrasing):

The younger you become sexually active - even within your own age group - and the more partners you have, even more "serious" relationships like say a series of live-ins, the more likely you are to never be able to develop a committed, normal, family-producing relationship. This applies to both males and females.

In fact, some of the saddest calls are from young men - early to mid-twenties who are already concerned that they aren't connecting emotionally with any of the young women they date.

I have the impression it may not be "fixable" as the younger you are when you experience something the deeper the impression made on your psyche.

The judge in KS may not think that's any big deal but gee, I don't know, blighted lives seem important to me and certainly to those who are living them.


18 posted on 02/10/2006 7:10:24 AM PST by Let's Roll ( "Congressmen who ... undermine the military ... should be arrested, exiled or hanged" - A. Lincoln)
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To: All

Not a knee jerk conservatism case.

The law apparently suggests some discretion be provided the people on the scene. Two 17 yr olds have sex the day before their 18th birthdays and it rises to the notice of someone, perhaps because the girl asks for a pregnancy test a few months later.

This situation doesn't deserve prosecution. Some discretion is appropriate.


19 posted on 02/10/2006 7:11:09 AM PST by Owen
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Comment #20 Removed by Moderator

To: ZGuy

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.


21 posted on 02/10/2006 7:17:27 AM PST by wouldntbprudent (If you can: Contribute more (babies) to the next generation of God-fearing American Patriots!)
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To: Let's Roll
Clearly the problem is created by allowing girls to have any social relationships outside of their family

Embrace the True Path

22 posted on 02/10/2006 7:17:29 AM PST by Oztrich Boy (Free Speech is not for everyone, If you don't like it, then don't use it)
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To: ZGuy

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?


23 posted on 02/10/2006 7:17:34 AM PST by Redbob
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To: frogjerk
Oops, should read "What Kinsely Kinsey has wrought".

Shame on you...there's no excuse for EVER confusing this man with someone who has sex.


24 posted on 02/10/2006 7:17:35 AM PST by beezdotcom
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To: ZGuy

Clinton strikes again. His appointments are like a systemic disease. They just keep coming back again and again.


25 posted on 02/10/2006 7:18:17 AM PST by blue-duncan
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To: Mighty Eighth
The back seat of Dad's Olds 98 worked just fine with MaryLou and I.......

I remember the old bumper sticker "It's not the Mayflower, but your daughter came across in it".

26 posted on 02/10/2006 7:18:40 AM PST by cryptical
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To: ZGuy

No controlling coital authority??


27 posted on 02/10/2006 7:19:32 AM PST by RadioCirca1970
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To: ZGuy

good, if they are mature enough to choose to have sex legally they are mature enough to execute when they kill someone.


28 posted on 02/10/2006 7:20:00 AM PST by conservative physics
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To: 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.

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.

29 posted on 02/10/2006 7:22:25 AM PST by Jim Noble (And you know what I'm talkin' 'bout!)
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To: wouldntbprudent

"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.


30 posted on 02/10/2006 7:22:38 AM PST by MineralMan (godless atheist)
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To: ZGuy
Americans created "teenagers" after World War II. No other countries has them the way we do....calling them all children up to 17 years, 364 days, and subjecting all of them to the laws of prepubescent children....except for 17-year-old "men" who enlist in the military. They suddenly become men at 17. Ah, the miralce of selective thinking.
Before that teens down to age 13 worked. Some boys as young as 12 went to sea to work. Two Years Before the Mast was a wonderful book based on that teen's experiences aboard ship.
"Underage" teens worked and married throughout history.

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.

31 posted on 02/10/2006 7:23:10 AM PST by starfish923 (Socrates: It's never right to do wrong.)
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To: Owen
I think doctors should be required to report every underage girl seeking an abortion to the police for prosecution, because the pregnancy is absolute proof she broke the law, as well as whoever had sex with her.
32 posted on 02/10/2006 7:23:29 AM PST by conservative physics
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To: Psycho_Bunny

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.


33 posted on 02/10/2006 7:24:17 AM PST by zook
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To: wouldntbprudent
Here's a judge who rejects the legislator's conclusions

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

34 posted on 02/10/2006 7:27:44 AM PST by Oztrich Boy (Free Speech is not for everyone, If you don't like it, then don't use it)
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To: MineralMan
This judges injunction against Klines opinion was overturned by the Tenth Circuit. So, in their view the law and Klines interpretation of it were okey dokey.

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.

35 posted on 02/10/2006 7:28:52 AM PST by jwalsh07
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To: wagglebee
I foresee a day in the not-to-distant future where pedophilia and beastiality is the law of the land, and I hope I'm long dead before it happens.

P.S. - please add me to your ping list.
36 posted on 02/10/2006 7:29:22 AM PST by reagan_fanatic (Darwinism is a belief in the meaninglessness of existence - R. Kirk)
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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."

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


37 posted on 02/10/2006 7:30:28 AM PST by MineralMan (godless atheist)
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To: MineralMan
That's the trouble with such laws. While they mean well, they fail in their purpose if they are this inclusive. Yes, cases of sexual abuse of minors should always be a criminal act.

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.

38 posted on 02/10/2006 7:30:32 AM PST by Dianna
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To: Oztrich Boy
Sad to say that the Tenth Circuit overruled Martens injunction against Kline and in so doing made it clear that the Kansas law has a rational basis.

Sad day for you and your fellow activists, eh?

39 posted on 02/10/2006 7:30:39 AM PST by jwalsh07
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To: bigsigh

And slavery used to be legal also.


40 posted on 02/10/2006 7:30:44 AM PST by mlc9852
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To: bigsigh

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.


41 posted on 02/10/2006 7:30:49 AM PST by Politicalmom (Must I use a sarcasm tag?)
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To: Oztrich Boy; MineralMan

I stand corrected, having read the article too quickly.

You are both right. Thanks for the nudge.


42 posted on 02/10/2006 7:31:05 AM PST by wouldntbprudent (If you can: Contribute more (babies) to the next generation of God-fearing American Patriots!)
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To: zook

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)


43 posted on 02/10/2006 7:31:10 AM PST by annelizly
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To: conservative physics

Very excellent point!


44 posted on 02/10/2006 7:33:33 AM PST by mlc9852
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To: ZGuy
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.
45 posted on 02/10/2006 7:34:11 AM PST by unlearner (You will never come to know that which you do not know until you first know that you do not know it.)
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To: ZGuy
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.

46 posted on 02/10/2006 7:34:11 AM PST by doc30 (Democrats are to morals what and Etch-A-Sketch is to Art.)
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To: GrandEagle
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.
47 posted on 02/10/2006 7:34:38 AM PST by ThisLittleLightofMine
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To: TChris
""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.

48 posted on 02/10/2006 7:37:34 AM PST by Wurlitzer (The difference between democrats and terrorists is the terrorists don't claim to support the troops)
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To: frogjerk; ZGuy
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

49 posted on 02/10/2006 7:37:39 AM PST by SoFloFreeper
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To: MineralMan

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.


50 posted on 02/10/2006 7:38:54 AM PST by Mr. Blonde (You know, Happy Time Harry, just being around you kinda makes me want to die.)
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