Teens’ sexual privacy upheld

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Teens’ sexual privacy upheld

Kline had sought mandatory reporting of minors’ activity as child abuse

By Ron Sylvester, Benita Y. Williams, and Melodee Hall BlobaumThe Kansas City Star, April 19, 2006

WICHITA — A federal judge ruled Tuesday that Kansas Attorney General Phill Kline overstepped the intent of lawmakers in a legal opinion concerning the sexual privacy of teenagers.

U.S. District Judge J. Thomas Marten ruled that health-care providers should have more discretion in what they are required to report to state law enforcement and social workers concerning the sexual activity of their patients under the age of 16.

As a result, Marten’s ruling prevents law officers and prosecutors from enforcing such a strict interpretation of the law.

Kline and prosecutors such as Sedgwick County District Attorney Nola Foulston sought to narrow the discretion of health professionals, fighting a lawsuit filed by a group that included doctors, nurses, social workers and psychologists from the Kansas City and Wichita areas.

The judge, who heard evidence at a two-week trial in January and February, said a 2003 legal opinion by Kline went beyond what legislators intended when they passed a 1982 child abuse reporting law. Kline’s opinion, the health-care providers said, would require reporting of most sexual activity of children under age 16 as child abuse.

“The court holds that a plain reading of the statute vests mandatory reporters, such as health-care providers, with discretion to determine when there is ‘reason to suspect a child has been injured’ as a result of sexual abuse,” Marten wrote in his ruling.

Simon Heller, attorney for the Center for Reproductive Rights, a New York advocacy group that filed the lawsuit, called the ruling an important victory for young people in Kansas and across the United States.

“It is the first ruling recognizing the United States Constitution gives protection — constitutional protection — to the informational privacy rights of young people in health care,” Heller said.

Kline said he had not had a chance to read the opinion and had not decided whether to appeal it to the 10th U.S. Circuit Court of Appeals in Denver.

But Kline said of Marten’s ruling, “It’s not unexpected. It’s what we’ve been predicting.”

Area prosecutors offered mixed reactions to Marten’s ruling.

Wyandotte County District Attorney Jerome Gorman, who gave a deposition in the case supporting Kline’s position, said the discretion to pursue abuse cases should lie with prosecutors.

He said Kline’s interpretation of the law would have increased the number of cases reported to authorities. However, Gorman said, he doubted the number of criminal cases pursued would have risen greatly because prosecutors would still decide whether to pursue charges.

“The prosecutor who deals with these matters day in and day out is more equipped to deal with this type of situation,” Gorman said. “Health-care providers might not deal with it on a regular basis or they might have biases, like an abortion provider.”

Johnson County District Attorney Paul Morrison, who is running for attorney general in the Democratic primary, said Kline’s position was “an overly simplistic interpretation” of the mandatory reporter law and would be difficult to enforce.

“Kline’s interpretation of the statute has, in most people’s views, been outside the conventional wisdom of the framers of that law,” Morrison said.

Morrison said there is no dispute that sex involving younger children must be reported, but he said underage sex between consenting older youths should be handled on a case-by-case basis.

“We’re talking about a 15-year-old who a health-care provider finds out engaged in fondling,” Morrison said.

Kline said he’s never sought to prosecute children who have consensual sex, only children who are victimized by adults. Without mandatory reporting, he said, law enforcement officials do not get the information they need to pursue cases.

Mary Kay Culp, executive director of Kansans for Life, wasn’t surprised by the ruling, which she expects will be appealed. Her main interest is in requiring clinics that provide abortions to report teen pregnancies.

But area physicians, school counselors and nurses worried that a different ruling would have had a lasting, negative effect on their relationship with teenagers who come to them for help.

Officials from the Olathe and Blue Valley school districts said now they can continue with their current practice. Nancy Keith, Olathe’s executive director of general administration who supervises student services, said when a mandated reporter learns information that indicates that a child’s mental or physical health is in jeopardy, “then we have to report that.”

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