Should Sexually Active Minors Have a Right to Privacy? A Kansas Case Reveals the Dark Side of Mandatory Reporting

By SHERRY F. COLB

Wednesday, Feb. 08, 2006

On behalf of several health care providers and counseling services, the Center for Reproductive Rights has brought a class action lawsuit challenging the Kansas Attorney General's interpretation of the state's mandatory reporting statute.

The statute requires a variety of "helping" professionals, including health care providers and educators, to report to state authorities when they have reason to suspect that a child has been injured by sexual abuse. The Attorney General has taken the position that sex involving a minor is - necessarily - sexual abuse.

In support of his position, he cites the Kansas prohibition on all sexual conduct among minors under the age of 16. Accordingly, the Attorney General interprets Kansas law to require professionals to report to the authorities whenever they learn that a minor has had sexual relations.

Critics of the Attorney General's approach suggest that the "zero-tolerance" reading of the law is excessively broad and punitive and, significantly, denies minors their privacy.

Whether or not the Kansas trial court resolves this issue in the Attorney General's favor, it will remain an important question for any state considering how to address the reality of sexual activity among minors and specifically, what role mandatory reporting should play in regulating abuse.

Is All Teenage Sex Abusive?

In considering whether to require the reporting of teen sex, the first question is always this: What is our view of teenage sex? Many teenagers take the position that if they are old enough to reproduce, then they are old enough to have sex. Some will point out that in other cultures, both ancient and modern, people marry at a much earlier age than in the U.S., and sexual activity is a part of marriage.

Furthermore, even Kansas law allows the fact that a would-be perpetrator and victim are married to each other to stand as a defense to charges of statutory rape and aggravated indecent liberties with a child. This defense demonstrates that the law does not truly consider all sexual activity involving a minor to be sexual abuse.

Kansas law instead treats a teenager under 16 as presumptively too immature for sexual intercourse, but in at least some instances, a legal marriage is sufficient to rebut that presumption. In such cases, it is not tenable to argue that the absence of a marriage license makes the very same sexual activity between the very same peoplesomehow "abusive."

If we accept the argument that there are individuals under the age of 16 who are emotionally and physically mature enough for sexual intercourse, then the legal prohibition against all people in this age group having sex is over-inclusive -- that is, it prohibits some instances of conduct that are not, in fact, harmful.

Over-inclusiveness is not fatal to a law, but it does mean that even in a state like Kansas, where all under-16 sex is a crime, it does not follow that every sexually active teenager under 16 who visits the doctor is, by definition, an abuse victim.

If some sexually active teenagers fall outside the category of abuse victims, then a doctor or other helping professional should perhaps be allowed to use her own judgment to determine whether what has occurred truly calls for notification of the Kansas Department of Social and Rehabilitation Services.

What If Minor Sex is Always Abusive?

One might, of course, disagree and say that in an ideal world, no one under the age of 16 is having sexual relations. On this view, although the law may make some (possibly inappropriate) allowances for married couples, a teenager under 16 is always too immature for responsible sexual interaction and when such interaction nonetheless occurs, a teen is almost certainly involved in an abusive and harmful relationship. One who takes this position might support the Attorney General's approach.

The Attorney General believes that the statute requires helping professionals who encounter sexually active teenagers to take steps that will enable the law to make the judgment it needs to make. If there is good reason to suspect abuse -- and any time a minor is having sex, from this perspective, there is good reason enough -- authorities should be notified.

Kansas law, as interpreted by the Attorney General, simply attempts to bridge the gap between the real world and this version of the ideal world by bringing the police power to bear whenever that gap surfaces.

If we agree with the position that sex between minors is a very bad thing, does it then follow that we should support mandatory reporting?

Evil in Itself, or A Poor Means to a Worthy End?

One could answer the question "no" for two separate reasons.

One might take the position, as some opponents of the Attorney General's view have done, that mandatory reporting of minors' sexual activity violates the minor's right of privacy. Proponents respond to this suggestion that engaging in sexual abuse forfeits one's privacy.

This response, however, is truly nonresponsive. The reason for mandatory reporting is ordinarily the welfare of the minor about whom the report is being made - the victim of the abuse. Victims of sexual abuse are as entitled to privacy as anyone else, and their sexual victimization is hardly a ground for saying that they have forfeited that privacy.

Invoking the punitive notion of forfeiture in this context, moreover, suggests that the purpose of mandatory reporting -- as construed by the Attorney General -- may be humiliation and prosecution rather than protection. This may also explain the Attorney General's focus on abortion providers in his argument that as a matter of law, sexual abuse must necessarily have been involved in giving rise to a teen pregnancy. The desire to report all teen abortions to the authorities could well be motivated by something other than a sincere concern for the welfare of the girls involved.

To tell the authorities about a patient's or a student's sexual activity, with or without the patient's or student's willing cooperation, a doctor or teacher must betray the confidence that a minor has placed in a trusted adult. Many would consider such betrayal wrong.

Furthermore, those who share the view that teenage sex is virtually always destructive and harmful to the participants might nonetheless oppose mandatory reporting because of its impact on victims as a whole.

The Point of Mandatory Reporting

In crafting mandatory reporting requirements, the Kansas legislature presumably had in mind the removal of an abused minor from the circumstances in which such abuse takes place. If a parent or step-parent is involved, for example, then a government caseworker could move to terminate the perpetrator's custodial or parental rights. If we extend this paradigm to include sexual interactions between two teenagers, then perhaps the authorities could take measures to keep the involved teenagers apart or to notify their parents of the need to intervene.

If we agree that intervention is desirable, though, does it therefore follow that mandatory reporting is a good idea? Not necessarily.

If health care providers and counselors consistently report teenagers' sexual activity to the authorities, teenagers might well take this policy into account when deciding whether to approach a professional in the first place. There is, in other words, an incentive problem: if Tony Teenager knows that going to the doctor will expose him to Department of Social Services intervention, he might decide not to go to the doctor at all.

If Tony makes the decision to avoid health care providers, then a number of negative consequences follow: first, if he is suffering abuse, he may become isolated in that abuse and feel unable to go to an adult to help extricate him from his circumstances; second, he might contract and ultimately spread sexually transmitted diseases ("STD's") or impregnate girls, because he does not want to be reported to the authorities when he attempts to obtain contraceptives or treatment for an STD.

These consequences would qualify as disastrous by most lights.

Not An Easy Question: Particular Cases Versus Systemic Effects

If one views sexual activity among minors as relatively harmless or trivial -- and accordingly rejects the expansive definition of "sexual abuse" embraced by the Kansas Attorney General -- then the issue is easy: do not report teenage sex. There is no good reason to do so: it compromises privacy, and it leads to terrible results. But if one honestly views teenage sex as a serious harm for the teens involved, then the issue becomes much more difficult.

Just to step into that mindset for a moment, imagine that what we are talking about is a pediatrician discovering that a teenager has been raped by a parent. The teenager begs the pediatrician not to reveal the information to anyone, but the pediatrician worries that the abuse will continue unless she steps in. The teenager's privacy interests point in one direction, while his interest in safety and the termination of the abuse points in another. Add to these interests the fact that other teenagers who learn that their doctors, too, will report a rape to the authorities may choose to keep their victimization to themselves.

Looking at the dilemma in this way demonstrates that mandatory reporting statutes -- even when they are applied to seriously abusive circumstances -- can potentially do more harm than good. This reality should play a role in the decision whether to embrace mandatory reporting statutes -- however broad or narrow -- as a way to deal with abuse. In the individual case, it might seem outrageously irresponsible to keep secret an ongoing molestation, but the law must consider its own impact on the run of cases and any chilling effect that mandatory disclosure might have on the very population it is meant to protect.

Mandatory Reporting Statutes, even at their best, thus pit the particular against the general: do we forcibly rescue one person from harm, at the risk of frightening away fifty others from even broaching the subject with a professional?

The question, moreover, is difficult, no matter how significant the alleged abuse. But when, as in the case of teen sex, there is considerable controversy about whether the conduct is even abusive, it seems highly irresponsible to pursue the zero-tolerance approach that the Kansas Attorney General has adopted.

The privacy rights of teenagers and the hope that fewer of them will have sex prematurely both counsel a far more nuanced approach.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.

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