the law according to phill

Anybody who lives around these parts knows Phill Kline, the consummate culture warrior, the protector of law and order, the man who does it all for the children. People outside the state of Kansas may have gained a passing familiarity from native son Thomas Frank, who described a 2002 Kline campaign rally as a masterful example of divide-and-conquer conservatism in his best-selling What's The Matter With Kansas.

Well it's been a good weekend for Phill Kline. After all, it's not every day that a win in appellate court allows one to hear about all manner of hot teen action. From the Kansas City Star:

Bolstered by an appellate court ruling, Kansas Attorney General Phill Kline on Saturday said he would demand anew that all health professionals report cases of underage sexual activity.

The 10th U.S. Circuit Court of Appeals on Friday overturned a federal district judge’s order that had blocked the state from enforcing a law requiring reports of consensual sexual activity among children under 16.

This all started back in 2003, when the dashing new A.G. used the clear mandate derived from his 50.3% to 49.7% victory over Democrat Chris Biggs to harass young women who have abortions. Phill's office issued an opinion that radically changed the enforcement of Kansas's child abuse reporting law. Here's what that law says (K.S.A. 38-1522, full text available here)

38-1522. Reporting of certain abuse or neglect of children; persons reporting; reports, made to whom; penalties for failure to report or interference with making of a report. (a) When any of the following persons has reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided in subsection (c) or (e): Persons licensed to practice the healing arts or dentistry; persons licensed to practice optometry; persons engaged in postgraduate training programs approved by the state board of healing arts; licensed psychologists; licensed masters level psychologists; licensed clinical psychotherapists; licensed professional or practical nurses examining, attending or treating a child under the age of 18; teachers, school administrators or other employees of a school which the child is attending; chief administrative officers of medical care facilities; licensed marriage and family therapists; licensed clinical marriage and family therapists; licensed professional counselors; licensed clinical professional counselors; registered alcohol and drug abuse counselors; persons licensed by the secretary of health and environment to provide child care services or the employees of persons so licensed at the place where the child care services are being provided to the child; licensed social workers; firefighters; emergency medical services personnel; mediators appointed under K.S.A. 23-602 and amendments thereto; juvenile intake and assessment workers; and law enforcement officers. The report may be made orally and shall be followed by a written report if requested. When the suspicion is the result of medical examination or treatment of a child by a member of the staff of a medical care facility or similar institution, that staff member shall immediately notify the superintendent, manager or other person in charge of the institution who shall make a written report forthwith. Every written report shall contain, if known, the names and addresses of the child and the child's parents or other persons responsible for the child's care, the child's age, the nature and extent of the child's injury (including any evidence of previous injuries) and any other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the persons responsible for the injuries.

Complicated stuff, to be sure. But Phill summoned his vast years of legal experience, and came up with a somewhat novel interpretation of the law. His position was summed up nicely in his recent interview on NOW:

DAVID BRANCACCIO: You issued a new interpretation of this state's child abuse reporting law that required, as I understand it, doctors, school counselors and psychotherapists and others, to report sexual activity of people under the age of 16. Not necessarily rape, but just evidence of sexual activity-- as, under law, evidence of child abuse.

ATTORNEY GENERAL KLINE: Kansas law makes it unlawful for a 15-year-old to have intercourse. That's the law. Most states have these age-of-consent laws.

Thats right. According to Phill, a laundry list of professionals have to report evidence of any sexual activity whatsoever involving a child under the age of 16. Not just in cases of rape or pedophilia. Not just in cases where, say, a middle aged man has a 15 year-old girlfriend. It makes no difference who the child is having sex with--any time anyone under the age of 16 is getting any, according to Phill, they are being sexually abused. And if a doctor, therapist, counseler, teacher or lunch lady knows that a minor is getting laid, they have to tell the police about it. The implication is clear: if two people under the age of 16 get it on, the state has a right to know.
Pretty screwey, right? Why in the world would would Phill think that even consensual sex among minors is "sexual abuse"? There's a few clues in the Attorney General's legal opinion that started it all:

A child under the age of 16 who is seeking an abortion is a child who has had sexual relations (leaving aside the remote possibility of artificial insemination). Under Kansas law, such relations are unlawful and constitute either rape, aggravated indecent liberties with a child or unlawful voluntary sexual relations. Kansas law clearly provides that those who fall under the scope of the reporting requirement must report any reasonable suspicion that a child has been injured as a result of sexual abuse, which would be any time a child under the age of 16 has become pregnant. As a matter of law such child has been the victim of rape or one of the other sexual abuse crimes and such crimes are inherently injurious.

Accordingly, K.S.A. 38-1522 requires that abortion providers have a mandatory duty to report to appropriate authorities as evidence of sexual abuse circumstances of a minor child under the age of 16 seeking abortion services to terminate a pregnancy

As it turns out, all sex by a minor, even consensual sex with another minor, is evidence of sexual abuse because it will provide a potent legal tool in the harassment of abortion clinics and young pregnant girls. Look closely at the wording of the opinion: it applies not just to young women who successfully terminate a pregnancy, but to those "seeking" an abortion. Presumably, this means that any pregnant girl under the age of 16 who consults with Planned Parenthood must be reported. It has the potential to mean that any nurse who dispenses birth control to a minor must call the authorities, since birth control is evidence that a minor has (or will soon have) "sexual relations." The New Standard notes that this interpretation is quite a departure:

The lawsuit notes that Kline’s interpretation is contrary to a 1992 opinion written by former Kansas Attorney General Robert Stephan, who construed the reporting statute to mean that illegal sexual activity involving youth under 16 is not necessarily harmful and thus may not need be reported as abuse.

You see, Phill is a political animal, through and through, and it's no secret that he has higher ambitions than the Attorney General's office (as evidenced by his unsuccessful run in 2000 for the U.S. House of Representatives) And you can bet he understands that success in statewide elections within the Kansas Republican party largely hinges on the extent to which he can mobilize the pro-life vote. To that end, he's doing a heckuva job. Operation Save America, one of Kansas's pre-eminent anti abortion groups, had this to say about his pursuit of abortion records:

Attorney General Phil Kline of Kansas is doing a tremendous job exposing and prosecuting the horror that takes place in Kansas abortion mills every day. We were privileged to be a part of the team that helped get him elected. Now, he is fulfilling his promises, first to his Lord Jesus and then to God's people and the electorate. Hallelujah!

Praise the Lord! Aside from the somewhat alarming implications that Phill's obligations to to the electorate are third on his list of priorities, it's pretty clear that he's becoming a hero in the wingnut-o-sphere. But perhaps I'm not being fair--after all, I can hardly fault Phill Kline just because he did something that affects abortion clinics. Maybe this really is about rooting out pedophiles. I mean, it's not as if he's traveling around the country to speak out against abortion specifically. It's not as if this letter appeared in a Sheboygan, Wisconsin paper on January 9:

The callousness and disregard for the value of life has spilled out of the abortion clinics and into our homes and streets. It is almost commonplace now to hear stories of newborns being abandoned or murdered by their own parents.

I invite you to join us on Jan. 15 for the 21st annual Rally for Life. It will be held in the North High School auditorium from 1:30 to 3 p.m.

This year's keynote speaker will be Kansas Attorney General Phill Kline.

Yikes.
But put aside reproductive freedom for a second. Put aside the dangerous use of the criminal law to enforce a repressive social agenda. Put aside the skeezy politics of it all. Put aside the sheer nastiness of placing young girls who have abortions through the shame and humiliation of police interrogation. Phill's interpretation of the law has implications that stretch far beyond the walls of abortion clinics. Remember that the law requires all the people listed to report to the authorities when they have "reason to believe" that a minor is being sexually abused. If, as Kline would tell it, "sexual abuse" encompasses consensual sex between minors, this turns all of the people listed in the statute into the sex police. If a young girl tells her therapist that she is sexually active, that therapist has to alert the fuzz. If a teacher overhears a young man bragging to his buddies that he lost his virginity, call in the squad cars. If the school janitor (remember, the statute requires all "employees of a school" to report) hears rumors that little Susie gets around, he must tell the proper authorities--failure to do so is a class B misdemeanor.

Everyone can agree that stopping the sexual abuse of minors should be a top law enforcement priority. But using limited law enforcement resources to investigate consensual sex between minors will only detract from that goal. Realistically, it's extremely unlikely to yield many successful prosecutions. In the inevitable cases where a minor has been impregnated by another minor, who exactly is the Attorney General's office going to prosecute? After all, according to Phill, in that case, each minor would be both the perpetrator and victim of sexual abuse.

Kline's actions have so pissed off moderate Republicans that Johnson County's popular district attorney, Paul Morrison, has switched parties to run against him as a Democrat in 2006. Morrison has been re-elected four times in a heavily Republican area, and, unlike Kline, actually has law enforcement experience. If Morrison can peel off enough moderate support, reasonable Kansans just might have something to celebrate come November.