Kansas Sex Case: Phill Kline loses, gets slammed for usurping legislative authority

A federal judge has ruled that Kansas Attorney General Phill Kline overstepped his power when he declared that health care providers must report every instance of sexual activity between consenting teenagers as sexual abuse.

Speaking through a spokesperson, Kline immediately declared victory. (I’m not kidding. Honest, I’m not.)

U.S. District Judge J. Thomas Marten of Wichita issued the 39-page ruling this afternoon. He noted that Kline was attempting to step outside his constitutional authority.

In accordance with the general principles of the separation of powers, the executive department cannot generally usurp or exercise judicial or legislative power . . . . In view of both the statutory language and the long-standing interpretation of the reporting statute, the Kline Opinion effectively amends the reporting statute by eliminating the discretion the legislature gave mandatory reporters to determine if there had been an injury. Under the Kline Opinion, the mandatory reporter has no discretion with respect to reporting illegal sexual activity of a minor … in contravention of the plain language of the statute and legislative intent…

The Wichita Eagle reported that even though Kline claimed he had won, he is expected to appeal the ruling. (I’m not making this stuff up, folks.)

Kline's office said the judge did what the attorney general had hoped for in upholding the Kansas child abuse reporting law as constitutional.

“That’s what we’ve maintained, that the statute is constitutional,” said Whitney Watson, spokesman for Kline’s office.

Kline issued a written statement around 6 p.m. See the Eagle story for the statement.

The judge noted that both sides in the case conceded that it was mandatory for health care providers to report cases of incest, sexual abuse of a child by an adult and sex involving children younger than 12.

The judge goes into detail about the testimony in the case, making the ruling interesting reading because of how clearly it sets out the issues. You get a much better sense of what’s going on from reading the ruling, then from any reporting, and that’s not a slam on newspaper reporters. It’s only a criticism of the amount of space they have.

One of the most interesting parts of the ruling, for me, was the impact of mandatory reporting on children who are actually victims of abuse.

The judge wrote:

Finally, beyond the irreparable harm that all minors may be subject to, evidence supports a finding that mandatory reporting of all illegal underage sexual activity will harm those minors who are actual victims of “sexual abuse” as defined by SRS’s working definition. SRS Director Sandra Hazlett stated that the Kline Opinion would increase the number of intake reports, increasing the workload without a corresponding increase in funding. Besides overwhelming state agencies, reporting all sexual activity as sexual abuse tends to trivialize actual sexual abuse, according to Dr. Nancy Kellogg, pediatrician and professor at the University of Texas Health Science Center at San Antonio, Texas.

This is an important case for many reasons. Besides from what this will do to protect children, there is the utter irony of a staunch conservative like Kline being declared to be a horrible "activist" who usurps legislative power.