What "is" is.

What "is" is.

What "is" is.

The law, lawyers, and the court.
Feb. 9 2006 5:02 PM

What "Is" Is

More fun with the Kansas teen-sex trial.

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In general, I am a big proponent of the theory that most news stories—like houseguests—begin to stink after a week. But the Kansas teen-sex trial I wrote about last week just keeps on getting better. For those who missed it, Kansas Attorney General Phil Kline reinterpreted his state law to require all health-care workers, doctors, counselors, social workers, and others to report every single instance of intimate contact between consenting teens under 16, on the theory that each such incident constitutes a rape, regardless of the parties' mutual consent. What started as his office's zealous prosecution of sexual abuse is turning into a first-year lit class on the hermeneutics of exegesis. And as the trial grinds on, no one appears to be more frustrated than U.S. District Judge J. Thomas Marten, who described the proceedings last week as "wallowing in a sea of uncertainty." This Tuesday Marten went further: "We have also in the course of several days engaged in totally asinine game playing in terms of semantics."

It's not hard to understand the judge's frustration. How is he to figure out whether illegal teen sex should be reported when Team Kansas can't seem to agree on what illegal teen sex is. Marten has tried—for years now—to get to the bottom of this simple question: What types of conduct, precisely, are to be reported by health workers as sexual abuse? Here's what we know thus far:

  • According to Kline's advisory opinion that launched the dispute, "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." That would, in theory, include what my high-school friends would have called "kissing."
  • According to Kline's trial testimony last week: Illegal sexual activity is conduct "which is so clearly offensive as to shock the moral conscience of a reasonable person." He further refined this answer to explain that it's thus a crime for a 15-year-old boy to perform oral sex on a 15-year-old girl, but it's only a crime for a 15-year-old girl engaging in oral sex on a 15-year-old boy "if there's penetration." When questioned as to what such penetration might involve, Kline responded, "I'm not certain."
  • According to Kline's Assistant Attorney General Camille Nohe, only "significant sexual conduct" such as vaginal or anal intercourse and oral sex among willing adolescents must be reported under the Kline policy.
  • But according to Sedgwick County District Attorney Nola Foulston, "the law requires reporting of all illegal sexual activities between underage adolescents. That would include a boy touching the breast of a girl or either adolescent touching the genitals of the other."
  • And according to Cathy Hubbard, program administrator for the Department of Social and Rehabilitative Service's Child Protection Unit? It was her initial understanding that Kline's 2003 opinion, which reinterpreted the state's reporting law, mandated reporting of all sexual activities by underage youths, but within the last month, an attorney for Kline's office informed her that the interpretation applied only to sexual intercourse.

In short, over a two-week trial, four government officials have now offered five different interpretations of what abusive sex is in Kansas, and even that definition changes with time. This inconsistency perfectly illustrates the silliness of Kline's insistence that yet more state officials—rather than fewer—should be involved in determining when child rape has occurred. Doctors and counselors and nurses are pretty skilled at guessing what "abuse" is. But now they're supposed to figure out what "sex" is before their attorney general has figured it out for himself.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.