Sex in Kansas

posted by Daniel Solove

Yes, Dorothy, you really can tell your doctor about sex in Kansas. A while ago, I wrote about the Kansas Attorney General’s interpretation of a law prohibiting sex with minors under the age of 16 as requiring doctors to report any sexual activity by people under 16 to the state authorities (here and here).

Recently, a federal district court judge concluded in Aid for Women v. Foulston:

An individual’s right to informational privacy may be implicated when the government compels disclosure of that individual’s personal sexual or health-related information to the government and/or to other third parties. Compelled disclosure may violate an individual’s right to informational privacy unless the disclosure serves a compelling state interest in the least intrusive manner. To determine whether information is of such a personal nature that it demands constitutional protection, the court considers: “1) if the party asserting the right has a legitimate expectation of privacy; 2) if disclosure serves a compelling state interest; and 3) if disclosure can be made in the least intrusive manner.” A “legitimate expectation of privacy,” is based “at least in part, upon the

intimate or otherwise personal nature of the material.” . . .

The Supreme Court and this Circuit have extended to minors the constitutional right to privacy, including the right of informational privacy. However, in a variety of contexts the power of the state to control or regulate the conduct of children has been found to reach beyond the scope of its power over adults. For the narrow issue of whether mandatory reporting of consensual sexual activity of minors violates a minor’s informational privacy rights, the court begins with a three-prong analysis: 1) is there is a legitimate expectation of privacy; 2) does disclosure serve a compelling state interest; and 3) can disclosure be made in the least intrusive manner? The court finds the Kansas reporting statute encompasses these elements. First, the statute recognizes an expectation of privacy in conduct when there is no reason to suspect injury as a result of abuse. Second, the state clearly has a compelling interest in protecting children from abuse, but, as the statute indicates, this interest is limited to circumstances when there is a reason to suspect injury. Thus, a minor’s privacy ends where the state’s interest in protecting the minor begins. Finally, the statute recognizes that privacy should be breached only when injury to the child is reasonably suspected. By its very terms, the statute recognizes an element of privacy in mandatory reporting of unlawful sexual activity of a minor.

As the court concluded above, the statute itself wasn’t a problem. The Kansas AG’s interpretation of the law, however, went too far, and the court enjoined it. According to the court:

The state has a strong interest in protecting minors and promoting public health. But this interest is at its ebb in the present action, where the Attorney General’s Opinion goes beyond the scope of the reporting statute, potentially criminalizing the decisions health care providers make in utmost good faith, and solely with the physical and emotional health of their patients in mind. The Attorney General’s over-expansive interpretation of the reporting statute not only fails to serve the public interest, it actually serves to undermine it by causing minors to avoid seeking medical services and potentially overburdening SRS.

The court’s interpretation of the reporting statute promotes the public interest; injunctive relief advances the interests of society in general. The core of the reporting statute – providing for the detection and protection of children suffering from incest or abusive sexual activity – is unaffected by this opinion. Such acts were and will remain subject to mandatory reporting. But the statute was not intended to cover consensual sexual activity between age-mates that do not result in injury. Injunctive relief barring the Attorney General from instituting a per se rule that all illegal sexual activity involving a minor is injurious advances the public interest in protecting children by allowing reporting, administrative investigation, and law enforcement efforts to be concentrated on the legislature’s real target – true sexual abuse. Injunctive relief also will prevent dissipation of scarce public resources on clear cases of consensual, same-age sexual relations, and it will avoid creating a government storage house of reported consensual sexual activity between age-mates.

The court discussed the testimony of medical experts that demonstrated the harms of the blanket reporting requirement. One expert testified that:

Mandatory reporting of all sexual activity to a state agency can be more frightening given the potential for criminal liability. If minors are told that there may be an investigation, they may be more inhibited in seeking care. Further, minors who otherwise would seek medical care with their parents’ involvement may be deterred by the potential to involve their parents in a criminal investigation. Automatic mandatory reporting of illegal sexual activity involving a minor will change the nature of the relationship between a health care provider and the minor patient to some degree. Based on studies that evaluated the effects of parental notification, there will be a significant decrease in minors seeking care and treatment related to sexual activity. In the context of a reporting statute, the effects may be greater since a state agency will be notified of the alleged “sexual abuse.” According to several witnesses, in the long-term, forgoing or delaying medical care leads to risks to minors including the worsening of existing medical conditions and the spreading of undiagnosed diseases. The Wisconsin study indicates that at a minimum, young persons report that they will engage in riskier behavior if confidential care is not available.

Another expert testified as to the effects of the reporting requirement on victims of sexual abuse:

The court finds Dr. Kellogg’s testimony to be particularly insightful and compelling. Her experience extends across the entire spectrum of victims of sexual abuse – she has examined over 8,500 persons in her practice and is widely published in peer-reviewed publications. . . . Dr. Kellogg testified, inter alia: 1) not all underage sexual activity, including intercourse, is injurious; 2) appropriate sexual activity, which will vary from person to person, is part of a normal person’s development; 3) she takes whatever time she needs in conducting clinical interviews with her patients; and 4) maintaining discretion in reporting to determine if injury has occurred is important, as there are differences in patients and their situations.

In my earlier post about the issue, I wrote:

If one applied Whalen [the case establishing the constitutional right to information privacy] rather formalistically, one might conclude that so long as Kansas officials provided adequate security for the information and did not publicly disclose it, the reporting requirement would not violate the right to information privacy. But the Kansas reporting requirement differs in its more significant breadth — it goes beyond the original purpose of the law, which is really a sexual abuse and statutory rape law, not a general anti-teen sex law. The court may thus find that this broad reporting requirement is not justified — the state interest in reporting might not be compelling enough. On the other side of the balance, the privacy interests are quite strong. Such a reporting requirement might deter teenagers from seeking medical care for STDs or from obtaining contraception.

The plaintiffs do not devote much attention to the Fourth Amendment in their papers, but I believe that the plaintiffs may have a strong Fourth Amendment argument.

The court basically agreed with my analysis of the constitutional right to information privacy. I still think that there’s also a potential Fourth Amendment argument too.

Hat tip: Chris Geidner

Related Posts:

1. Solove, Can Doctors Be Required to Tell the Government About Teen Sex? (Feb. 2006)

2. Solove, Update on the Kansas Teen Sex Medical Records Case (Feb. 2006)

 April 19, 2006 at 1:43 pm   Posted in: Privacy, Privacy (Medical)    Print This Post

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