BY ARTHUR S. LEONARD
A divided federal appeals court in Denver found it likely that Kansas can require teachers, health care workers, and counselors to inform the state whenever they have reason to believe that people under age 16 are having sex—even with their underage peers—ruling on January 27 that a district judge in Wichita should not have issued a preliminary injunction pending trial in a challenge to the requirement.
The appellate ruling in Aid for Women v. Foulston came just days before the trial began on January 30 in Wichita before District Judge J. Thomas Marten. Realizing this, the appeals court stayed the effect of its ruling for two weeks, essentially allowing the injunction to stay in effect during the trial.
Kansas penal statutes set a firm age of consent of 16 for almost all sexual activity, regardless of whether it is consensual or not. If 15 year-olds engage in any sexual activity with each other, they are breaking the law. Presumably, any 15-year-old girl showing up pregnant at a clinic has broken the law, and any 15-year-old boy asking a counselor about contraception is planning to break the law.
Another Kansas statute provides that any of a list of specified licensed professionals—in health care, education, law enforcement, and other areas—who has “reason to suspect that a child has been injured as a result of physical, mental, or emotional abuse or neglect or sexual abuse” must promptly report the matter to the state. Before 2003, the state followed a 1992 advisory opinion by former Attorney General Robert T. Stephan, essentially taking the position that the reporting requirement did not necessarily extend to every case of a pregnant teen or to consensual sex between underage teens, since it applied only to cases of “injury.” Stephan wrote that not every instance of underage sex results in an injury. Clearly, the statute was mainly concerned with detecting physical, mental, or sexual abuse of children by adults.
However, in 2003, the current attorney general, a right-wing, anti-abortion crusader named Phill Kline, issued a new opinion, taking the view that underage sex is always harmful and thus the reporting requirement applies to any underage sexual activity, regardless of consent. This means, for example, that any time a girl under 16 years old seeks counseling from a teacher, or health care from a licensed professional in connection with a pregnancy, the reporting requirement is triggered.
Shortly after Kline issued his opinion, the Center for Reproductive Rights sued on behalf of Aid for Women, a provider of abortion services in Eastern Kansas, and a group of other health care professionals in the state, claiming that any reporting requirement for consensual sex would violate the constitutional privacy rights of Kansas teens. The plaintiffs sought a pretrial injunction against enforcement of the reporting policy in consensual cases, and the trial judge, finding a likely constitutional privacy violation, granted the injunction.
Two elderly Reagan appointees to the 10th Circuit Court of Appeals, David Ebel and John Carbone Porfilio, voted to reverse, finding that people who engage in illegal activity have no privacy right regarding that information, even though they agreed that generally teens do have a right to privacy under the Constitution. Since Kansas outlaws sex for people under age 16, that ends the case, as far as they are concerned.
Dissenting, Judge Judith C. Herrera, who was appointed to the District Court in New Mexico a few years ago by President George W. Bush, argued that the privacy rights of the underage teens are not automatically overcome by the fact that their consensual sexual activities are a crime. She asserted that a balancing of rights was necessary, taking into account the plaintiffs’ argument that depriving teens of the ability to gain confidential counseling and care from their teachers, social workers, or health care professionals could prove more harmful than depriving the state of the information, especially if it deters the kids from seeking competent advice and health care.
The appeals court’s ruling only concerns the preliminary injunction. The trial this week and next will provide an opportunity for full arguments on the merits of the case, which may eventually be appealed to a different panel of 10th Circuit judges that would not necessarily be bound by this preliminary ruling.
The plaintiffs will present expert testimony to dispute Kline’s assertion that consensual teen sex is necessarily injurious to the participants.