Smells like teen snogging.

The law, lawyers, and the court.
Feb. 2 2006 6:05 PM

Smells Like Teen Snogging

Kansas' wacky attorney general smells sex everywhere.

Good places for curious adolescents to experiment with sex: backseat of dad's Volvo, under musty tarp in garage, last row of movie theater. Bad places for curious adolescents to experiment with sex: Wednesday night PTA meeting, choir practice, Kansas.

That's right. If you're under 16 in Kansas and wondering about the costs and benefits of stealing second vs. idling at first, think again. Your attorney general has your number. Why he cares who's fumbling around to the sultry musical stylings of Aaron Carter is a mystery. And it grows odder by the day.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

It all started with Kansas Attorney General Phill Kline. You may remember Kline from such earlier pro-life Movies of the Week as Phill Kline Subpoenas 90 Women's Abortion Records on Child-Rape-Fighting Pretext, as well as Phill Kline Files Suit To Terminate State Funding of Abortions for Medicaid Beneficiaries. The Kansas Supreme Court will issue a decision in the former suit tomorrow. A judge dismissed the latter suit last week, which attempted to define the instant of conception as the beginning of life—to bolster his argument that abortion violates the right to life under the state constitution, despite the clear constitutional rule announced in Roe v. Wade.

But striving for the 2006 pro-life trifecta, Kline is also embroiled in a lawsuit over the mandatory reporting of all teen snogging in Kansas. The trial, which opened on Monday in federal district court, surrounds Kline's 2003 advisory opinion on the state's mandatory reporting law. While Kansas is one of 12 states in which sex under a certain age—16, 17, or 18—is always presumed illegal, regardless of consent or the age difference between the partners, Kline's written interpretation of Kansas' reporting law makes it the only state requiring that doctors, nurses, counselors, and all other care providers report—as abuse—any sexual interaction between teens under 16. Failure to report is a misdemeanor. Under Kline's view, professionals must report even when the sex is consensual, committed with partners their age, and where there is no suspicion of injury. The plaintiffs who filed suit—a group of doctors, nurses, and counselors—contend that under Kline's policy, even evidence of teen necking must be reported.

This could mean finally putting a stop to the wanton actions of such teen harlots as Betty, Veronica, and Sandra Dee.

In their complaint, the health care providers, represented by the Center for Reproductive Rights, urge that while they support the reporting of all suspected sexual abuse of minors, the reporting of all nonabusive consensual sexual activity threatens their confidential relationships and would have a chilling effect on teen efforts to seek healthcare—including lifesaving HIV testing, birth control, and counseling. The attorney general's office argues that there is a legitimate state interest in stopping child abuse.

Back in July of 2004, U.S. District Judge J. Thomas Marten enjoined enforcement of Kline's view of the law until the case was resolved on its merits. He found that the reporting law violated the clients' and professionals' privacy rights without serving a significant state interest. Last week that injunction was lifted in a 2-1 decision of the 10th Circuit Court of Appeals, finding that the state interest in preventing crime outweighed the minors' privacy interests. On Monday the trial opened in Wichita, again before Judge Marten.

At one level, one almost wishes Kline would prevail in this case, if only to have his offices inundated with tens of thousands of reports that Steve frenched Stacy on the band trip to Topeka. California did away with a policy similar to Kline's after a year precisely because it proved so useless and wasteful. At another level, there are pressing constitutional issues at the core of what looks like a trivial lawsuit: What are the contours of the right to informational privacy and how does it apply to minors? Does singling out teenage abuse for such particularized scrutiny violate their right to equal protection? But at the most fundamental level, the question one really asks about the Kansas lawsuit is "why?" What is Phill Kline's purpose in insisting that there is no such thing as consensual teenage sex?

Kline's position is the same one he's taken in demanding to see abortion clinic records: This is part of a comprehensive plan to protect children from sexual abuse. But as is the case with the clinic records, the tools he's chosen are too crude. In one case, he wants to see unredacted abortion clinic records to sift for evidence of child sexual abuse, yet many of the 90 files he demands involve adult women, not minors. In this case, he says he needs to be advised of every breast that's been fondled around the state because each such incident is a crime, yet the vast majority of such fondlings harm no one, as he is well aware. As one expert testified Monday, wading through those thousands of benign reports will make the genuine abuse cases harder to pursue.

But I don't think Kline's real intent is to nail child abusers. In that sense it is entirely duplicative: The law already provides that any professional who suspects any form of child abuse must report it. Kline is merely saying he can better recognize some kinds of abuse than the doctors and counselors who treat it. That's curious. One may well wonder how state officials will know more from paper reports than treating providers. The more worrisome problem: Why did Kline stop trusting these providers in the first place?

Well, as it turns out, he still does trust most of them. On Tuesday Kline told an adoring Bill O'Reilly that the real target of the law is (surprise!) abortion clinics: "I get those [abuse] reports from medical offices, from hospitals, from doctor's offices, virtually every other health care provider. I do not get them from the abortion clinics." Indeed, as his 2003 opinion expressly states, its focus in broadening the rules was almost exclusively on "abortion providers." Is there something about abortion clinics that makes them less likely to report abuse? Or does Kline simply need to be informed about every single teen who seeks an abortion?

Curiouser: While Kline's interpretation of the Kansas law has always been read to implicate almost any type of sexual behavior, his office is now retreating on that claim as well. Whereas the sexual abuse statute explicitly sweeps into its definition, "any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or satisfy the sexual desires," at trial this week his office took the position that all such abuse isn't in fact abusive. On Tuesday, state Assistant Attorney General Camille Nohe—who helped write the original opinion—suddenly insisted that the opinion "just talks about sexual intercourse." She bristled at the interpretation of the law as implicating " 'all sexual activity' … I don't know where that's started."

No one was more confused by this sudden turnaround than Judge Marten, who has presided over this case for almost three years and always believed the opinion "extended beyond sexual intercourse." As he pressed her, Nohe clarified that "sexual intercourse" actually includes oral and anal sex but not necessarily "other activities, such as fondling of breasts, kissing and nuzzling." What looks like mere state inconsistency or incompetence (are we dealing with sex, oral sex, or groping here?) starts to look more sinister when you realize that Kline doesn't really care about going after all child abusers. An adult fondling the breasts of a 12-year-old should be reported but may be swept out of Kline's broad policy. Why?

Finally, Kline takes the not-illogical position that since all consensual teen sex is criminal, all teen abortion records provide vital evidence of that crime. Why, then, doesn't he subpoena all hospital records for evidence of all teen births? Is it possible that he is less interested in pursuing the real crime of teen sex than the non-crime of abortion? In two and a half years Kline's sweeping assertion that all health-care providers must report all teen intimate activity has morphed into demands for reports of consensual teenage sex that result in abortions. Which leads to the conclusion that the Kansas reporting law isn't intended to increase reports of child abuse, but to increase reports of teen sex—specifically from abortion providers. Which means that this law—along with Kline's attempts to subpoena state abortion records and force Kansas doctors performing abortions on girls under 14 to preserve fetal tissue—is part of the attorney general's single-minded use of his vast authority in the sole interest of hassling Kansas' abortion providers.

Kline has vociferously argued that every abortion is murder, even though the law of the land holds otherwise. That is why he trusts his own judgment about what constitutes criminal activity over the judgment of the health professionals who actually see and treat it. One nevertheless wonders whether he should really be using all of his resources with no law enforcement purpose in sight beyond fishing through the files of state abortion clinics.