"I can give you condoms, but I'll have to tell the cops"

Kansas trial: Must counselors report teen sex? (Including "fondling with intent to arouse"?)

Published January 31, 2006 4:30PM (EST)

From today's New York Times: A federal trial began yesterday over a Kansas law that would prohibit "virtually all sexual activity" by people under age 16, which would stop teens from having sex -- I'm sorry, which would stop sexually active teens from seeking contraception or getting STD treatment. Because what's specifically at issue in the case is this: whether, under the law, healthcare "professionals and educators must report [teens' sexual] behavior to state authorities."

This creepy case stems from a 2003 opinion by Kansas attorney general Phil Kline, who you may remember from such controversies as the "I'll be needing the names of women and girls who've had late-term abortions" lawsuit, which is pending in the state Supreme Court. Kline has also challenged -- unsuccessfully, I might gloat -- Kansas' use of Medicaid for abortions. Last year he got the Legislature to require abortion providers to collect fetal tissue from patients younger than 14 and turn it over to law enforcement officials (so that they can find out who the father is and press charges if necessary). Oh, and he has submitted a brief in a federal case arguing that Roe should go. So!

According to the Times, "Kline's interpretation of the law focused mainly on the reporting duty of abortion providers, arguing that any pregnant, unmarried minor had by definition been the victim of rape or abuse. But it included a broad mandate for reporting whenever 'compelling evidence of sexual interaction is present.'"

N.B.: That's compelling evidence of "interaction," not abuse.

It's also tricky because the Kansas Department of Social and Rehabilitation Services "has a policy against investigating cases of consensual teenage sex."

Kansas is one of 12 states that outlaw sex under a certain age -- 16, 17 or 18, depending -- regardless of the age difference between partners. (I was also under the impression that Kansas has no minimum age for marriage; does Kline believe that if, say, a 14-year-old is married, that automatically means no abuse is taking place?)

The Center for Reproductive Rights in New York is representing the plaintiffs in this class-action lawsuit. Their attorney, Bonnie Scott Jones, criticized Kline's "dragnet approach" in court yesterday, saying it "seriously endangers the health and well-being of adolescents."

Steve Alexander, an assistant attorney general, countered that "the Kansas statute meant that those younger than 16 could not consent to sex, and that those violating the law forfeited any privacy rights."

"Illegal sexual activity by minors can lead to S.T.D.'s, unwanted pregnancies, abortion, depression, mental illness," he continued. "To pretend otherwise is foolish."

OK, take out "illegal" and read his statement again. Right, so now let's deter teens from getting information that could help reduce those consequences. Who's foolish now?

Only California has tried to require reporting of all underage sex, which, wow, sounds like a big job. Indeed, after only a year, in the early 1990s, it stopped. Turns out the "authorities were flooded with 'irrelevant and obstructive' reports."

Kansas, if God forbid this law goes into effect, should brace itself for more of the same. The law would cover not only vaginal and anal intercourse and oral sex but also "lewd fondling or touching" with "the intent to arouse." Which, yes, could include what I believe they now call Freedom kissing. "The doctors, nurses, counselors and educators suing over Mr. Kline's interpretation of the reporting law say it goes far beyond abortion to include every teenager who requests birth control pills or H.I.V. testing, or who in a group therapy session even discusses 'heavy petting' with a boyfriend or girlfriend," says the Times.

"If they know what they tell me is reported, they simply won't talk," said Beth McGilley, a Wichita therapist who is one of the plaintiffs. And by "they" she means both minors and the adults who seek her advice for their children. "To me, it's violating what, quite essentially, therapy is couched in: confidentiality," McGilley said. "You have two 15-year-olds mashing in the back seat of the car -- who's the criminal here? Do we really need Big Brother to decide whether or not that needs to be judiciously pursued?"

By Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of BreakupGirl.net. She also writes for the New York Times, Glamour, and many others.

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