Judge: Attorney General trying to eliminate state's injury definition of rape

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Judge: Attorney General trying to eliminate state's injury definition of rape

By Roxana Hegeman, The Kansas City Star, February 2, 2006

WICHITA, Kan. - Kansas Attorney General Phill Kline interprets the Kansas reporting statute's definition of rape so that health care providers, social workers and others can no longer consider whether a child was injured before reporting suspected abuse, a federal judge said Wednesday.

U.S. District Judge J. Thomas Marten said that as he reads the Kansas statute, it is injury that triggers the reporting, not the sex act itself. Kline's 2003 opinion was a reinterpretation of that statute, he said.

Marten said the attorney general is trying to eliminate a medical determination of injury that the Legislature wrote into the statute. The judge also said Kansas law as written does not limit sex abuse to intercourse.

Kline's 2003 opinion says the state's 1982 reporting statute requires health care providers, social workers, school counselors and others to tell law enforcement or SRS about underage sex, even if it is consensual.

The Center for Reproductive Rights, a New York advocacy group, sued, arguing that forced reporting discourages adolescents from seeking counseling or medical treatment. In Kansas, the age of consent is 16.

Attorneys for Kline's office have contended that what Kline intended to be reported as abuse was penetrative sex and other more serious sexual conduct such as oral and anal sex.

Attorneys for the Center for Reproductive Rights contend the statute, as Kline interprets it, could be used to prosecute professionals for failure to report even minor acts such as lewd fondling between consensual same-age adolescents.

Three days into the trial, Marten said he had had enough: "Everybody is wobbling in a sea of uncertainty."

Marten said the Kansas statute "very clearly" provides that for a professional to suspect child abuse and report it, a child must have been injured as a result of physical, mental or emotional abuse or neglect.

Several health care providers and social workers have testified that consensual sex between similarly aged adolescents is not inherently harmful to them.

On Wednesday, a top official for the Kansas Department of Social and Rehabilitation Services testified that mandatory reporting of consensual sex between underage adolescents would overwhelm child protective services while doing nothing to better protect Kansas children from sexual abuse.

"That would cause an extreme burden on our staff," said Jean Hogan, regional director for SRS in Wichita.

SRS now routinely screens out any reports it receives of sex between consenting, underage adolescents, Hogan testified, adding that the workload for social workers at her agency was already at maximum capacity.

A large number of reports to SRS of consensual sexual activities would make it "nearly impossible" to meet expected time frames to make sure children were safe, she said.

Hogan acknowledged under cross-examination by Assistant Attorney General Steve Alexander that her agency does not investigate underage sex among consenting youths - even such behavior is unlawful under Kansas law.

"We are not prepared to investigate consensual sexual relations of adolescent age-mates," she said.

Hogan cited SRS policy that instructs staff to screen out reports of consensual youth sex.

Assistant Attorney General Scott Hesse, who is representing Sedgwick County Attorney Nola Foulston in the case, told Marten that Kline's office routinely examines the policies of all state agencies for legality.

The civil rights trial takes a day off Thursday before resuming on Friday, with Kline expected to be on the witness stand.

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