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.
What Kinsely has wrought.
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.
Therein lies the problem. Facially neutral but gender biased in application.
Almost makes you wonder if Judge Marten has a thing for young girls (or boys), doesn't it?
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.
Judge Marten sounds like a card carrying member of NAMBLA.
District (Federal) Judge ..V.. Kansas (state)
States Rights on the chopping block again !
Absolutely disgusting!
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.
"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.
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!
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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.
Clinton appointee.
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.
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.
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