Ratting Out Teen Sex Barred

Federal court overturns draconian Kansas rule on reporting sex among youth

Kansas Attorney General Phill Kline overstepped constitutional bounds and exceeded statutory authorization when he issued an opinion in 2003 stating that health care providers, school officials, and emergency service providers have a duty under state law to report to the Department of Social and Rehabilitation Services the name of any person under 16 who has been sexually active, according to an April 18 ruling by U.S. District Judge J. Thomas Marten.

Marten issued a permanent injunction against enforcement of Kline’s opinion, finding that a state law mandating the reporting of cases of injurious sexual abuse was not intended by the Legislature to turn doctors and teachers into informants about the sex lives of teenagers in general.

Given the circumstances and history of this case, it is likely that Kline will appeal the ruling to the U.S. Court of Appeals for the 10th Circuit, based in Denver, which in January overturned Marten’s preliminary, pre-trial injunction against enforcement of Kline’s interpretation.

The dispute dates to June 2003, when Kline issued his official Attorney General Opinion, in response to a question posed to him about the reporting obligations concerning pregnant teenagers. Under a 1982 statute, licensed professionals who provide medical, counseling, or emergency services in Kansas are obligated to report whenever they have “reason to suspect that a child has been injured as a result of sexual abuse.” Prior attorneys general took the position that the reporting duty was activated only if the professional determined that the child had been injured. They did not treat all sexual activity by minors as necessarily injurious.

Kline took a different approach. Observing that under the Kansas criminal laws all sex involving minors is illegal, Kline announced that all such sexual activity could be presumed to be injurious, and that because a minor cannot legally consent to having sex, all such sexual activity could be classified as “sexual abuse.” This would mean that anytime a teenager under 16 sought medical assistance in connection with pregnancy, contraception, or venereal disease, or sought counseling from a teacher, doctor, or counselor about their sexual activity, the professional would have an obligation to report.

The reporting obligation would be mandatory, and if such activity came to the attention of state authorities in some other way, a professional who had failed to satisfy the reporting requirement could theoretically lose their license and their job and be subject to other sanctions, including fines.

A coalition of professionals, led by the organization Aid for Women and other public interest groups, quickly filed suit to block enforcement of Kline’s opinion. In 2004, Judge Marten rejected Kline’s motion to dismiss the case, and late in 2005, he issued a preliminary injunction, finding that the plaintiffs had a good chance of prevailing in a trial and that allowing the opinion to remain in force could cause irreparable injury to Kansas teens.

The major concerns of the plaintiffs are that minors might delay confiding in teachers or counselors or avoid obtaining health care out of concern that they would be “turned in” for engaging in illegal sex. Doctors and counselors cannot provide effective assistance if their patients and clients are deterred from disclosing relevant information.

Although the 10th Circuit overturned the preliminary injunction in January just days before Marten had scheduled the hearing on the merits of the case, the parties agreed to go ahead with the hearing, which provided an opportunity for the plaintiffs and the state to present testimony about the scope of Kline’s opinion and the views of experts as to its likely impact.

Marten concluded that Kline’s opinion went far beyond the statute’s requirements, and violated the informational privacy rights of Kansas teens. Marten found that the Legislature had not equated sexual activity with abuse and injury, but rather, by its plain language, had recognized that some consensual sex among teens was not injurious, even though it was illegal. The purpose of the reporting statute was to make sure that incidents of serious sexual abuse came to the attention of responsible public authorities.

Marten especially noted testimony about the practices followed by the state’s Social and Rehabilitation Services department itself, which screens out any reports they receive of consensual sex between teenagers and takes no action. Marten observed that California had adopted a policy along the lines of Kline’s approach but quickly repealed it when a flurry of reports of harmless sexual activity hobbled state agencies in following up on serious cases.

Marten also pointed to significant judicial precedents for recognizing the constitutional sexual privacy rights of minors, which could only be set aside based on a strong public interest. The Kansas statute, as interpreted by earlier attorneys general, seemed to Marten to strike the appropriate balance between privacy rights and legitimate state concerns.

“There is clear risk that mandatory reporting will reduce the number of minors seeking care,” Marten found, adding it would also “increase workload” on state social service officials. One result would be “increased health risk to minors because they will delay or forego health care.”

Marten noted that even the expert witnesses presented by the state, when pressed on cross-examination, conceded that in their own medical practices they would not report consensual sexual activities of minors, even though they had claimed on their direct testimony that all minor sex is injurious.

Marten’s opinion also reflected confusion among the experts about what kinds of activity were reportable under Kline’s opinion, with some testifying that it only extended to sexual intercourse while others thought it also included oral sex, fondling of genitals, and even kissing.

Marten rejected the argument made by the appeals court, when it overturned his preliminary injunction, that minors can have no expectation of privacy while engaging in illegal activity. He asserted that the issue is their right of privacy with respect to the doctor-patient relationship, and that the state could not circumscribe a federal constitutional right by passing a state criminal statute.

Now the question is whether Kline will file an appeal.