KeyCite Red Flag - Severe Negative Treatment

Order Vacated by Aid for Women v. Foulston, 10th Cir.(Kan.), September 20, 2007

427 F.Supp.2d 1093

United States District Court, D. Kansas.

AID FOR WOMEN, et al., Plaintiffs, v.

Nola FOULSTON, et al., Defendants.

No. 03–1353–JTM.

|

April 18, 2006.

Synopsis

Background: Professionals subject to Kansas’ mandatory reporting statute, requiring doctors, teachers, and others to notify state government of suspected injury to a minor resulting from sexual abuse brought § 1983 action for declaratory and injunctive relief against Kansas Attorney General and all county and district attorneys in state, alleging that reporting statute was unconstitutional as applied to consensual underage sexual activity. Following remand, 441 F.3d 1101, bench trial was held.

***

Attorneys and Law Firms

*1095 Anamika Samanta, Bonnie Scott Jones, Galen L. Sherwin, Simon Heller, New York City, Janet Lynne Crepps, Simpsonville, SC, Laura B. Shaneyfelt, Hulnick Law Offices, Wichita, KS, for Plaintiffs.

Steven D. Alexander, Brian D. Sheern, Steven D. Alexander, Kansas Attorney General, William Scott Hesse, Camille A. Nohe, Office of Attorney General, Topeka, KS, Mark A. Sevart, Wichita, KS, for Defendants.

MEMORANDUM OPINION AND ORDER

MARTEN, District Judge.

This matter comes before the court on plaintiffs’ action

for declaratory and injunctive relief. Plaintiffs seek to prevent enforcement of Kansas Attorney General Phill Kline’s application of the state mandatory reporting statute, through an Attorney General’s Opinion,1 to consensual underage sexual activity.2 Specifically, as

*1096 filed, this case turns on whether Kan. Stat. Ann. § 38–1522, commonly referred to as the “Kansas reporting statute,” requires reporting of all consensual underage sexual activity as sexual abuse.

***

[1] [2] [3] The court heard approximately seven days of testimony in a bench trial commencing January 30, 2006. For clarity, the court notes that neither side objects to the reporting of: 1) incest; 2) sexual abuse of a child by an adult; and 3) sexual activities involving a child under the age of twelve. Therefore, the only issue presented is whether consensual underage sexual activity must be reported under the Kansas reporting statute. After extensive review of the record, this court holds that the Kansas reporting statute: 1) does not make all underage sexual activity inherently injurious; and 2) requires that the reporter have reason to suspect both injury and that  the injury resulted from illegal sexual activity, as defined by Kansas law, before reporting is required.  In addition, to require reporting in accordance with Attorney General Kline’s opinion would violate a minor’s limited right of informational privacy. Thus, this court permanently enjoins enforcement of Kan. Stat. Ann. § 38–1522 in any manner inconsistent with this decision, which includes the Kline Opinion.

I.  FINDINGS OF FACT

***

B. The Kansas Reporting Statute

Kansas law recognizes the state’s interest in reporting abuse of children:

It is the policy of this state to provide for the protection of children who have been subject to

physical, mental or  emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventive and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children.

Kan. Stat. Ann. § 38–1521. See also Clevenger v. Catholic Social Serv. of the Archdiocese of Kansas City, 21 Kan.App.2d 521, 529, 901 P.2d 529, 535 (1995) (“It is

apparent that the public policy of this state is to encourage persons with information concerning possible child abuse to report this information to the proper authorities.”); Kansas State Bank & Trust Co. v. Specialized Transp. Serv.,  Inc.,  249  Kan.  348,  372,  819  P.2d  587  (1991)

(purpose of reporting statute is to provide protection for children by encouraging reporting of suspected child abuse and insuring thorough and prompt investigation of such reports); Kennedy v. Kansas Dept. of Social and Rehabilitation Serv., 26 Kan.App.2d 98, 981 P.2d 266 (1999) (public policy of state is to encourage reporting of possible child abuse).

As part and parcel of this obligation, Kansas requires reporting to the state government whenever certain persons have “reason to suspect that a child has been injured as a result of ... sexual abuse.” Kan. Stat. Ann. § 38–1522 (emphasis added). The mandatory reporting

*1098 requirement extends to various medical and health care providers, school officials, law enforcement, child care service providers, social workers, counselors, and emergency response personnel. See Kan. Stat. Ann. § 38–1522(a) (listing the persons who are considered mandatory reporters). Such persons are required to notify the designated state agency, or, in limited circumstances, law enforcement. Kan. Stat. Ann. § 38–1522(c), (e). “Willful and knowing failure to make a report” is a misdemeanor criminal offense. Kan. Stat. Ann. § 38–1522(f).

Kansas law defines “sexual abuse” as “any act committed with a child which is described in article 35, chapter 21 of the Kansas Statutes Annotated.” Kan. Stat. Ann. § 38–1502(c). The referenced chapter criminalizes a range of sexual activities involving a minor under the age of sixteen.3 See, e.g., Kan. Stat. Ann. § 21–3503(a)(1) (“any

lewd fondling or touching ... done or submitted to  with the intent to arouse or to satisfy ... sexual desires”); Kan. Stat. Ann. § 21–3501(2) (“oral contact ... of the female genitalia or ... of the male genitalia”); Kan. Stat. Ann. § 21–3501(1) ( “any penetration of the female sex organ by a finger, the male sex organ or any object”). Based on the very language of the relevant provisions, sexual activity of minors younger than sixteen is illegal, regardless of whether the activity is voluntary or the sexual activity involves an age-mate.4 The only exception to this criminal ban is in the case of consensual sexual contact between a person under sixteen and that person’s spouse. See, e.g., Kan. Stat. Ann. §§ 21–3503(b); 21–3504(b);  21–2502(b).

Kansas has long allowed twelve-year-old females and fourteen-year-old males to marry with parental or judicial consent, although the Kansas legislature is now considering raising these ages. State v. Sedlack, 246 Kan. 305,  307, 787 P.2d  709,  710 (Kan.1990)  (citing State v.

Johnson,  216  Kan.  445,  448,  532  P.2d  1325   (1975)).

Kansas law requires both parties to be at least eighteen years of age before recognizing a common law marriage as valid. Kan. Stat. Ann. § 23–101(b) (2004).

3                  The term “minor” as used throughout this opinion means a person who is under the age of sixteen, i.e., a person who is under the age to legally consent to sexual intercourse.

4                  Kansas Department of Social and Rehabilitation Services officials testified that they consider “age-mates” to be persons within three years of age of each other.

The reporting statute does not define “injury.”

***

D.  Advisory Opinions

In 1992, Kansas Attorney General Robert Stephan issued an opinion defining the reporting requirements in cases of unmarried pregnant minors. In pertinent part, the opinion states:

Whether a particular minor in a particular case has been injured as a result of sexual intercourse and a resulting pregnancy must be determined on a case-by-case basis. The fact of pregnancy certainly puts one on notice that sexual abuse (as statutorily

defined) has probably occurred, and requires persons listed in K.S.A.1991 Supp. 38–1522(a) to investigate further whether the child has suffered injury, physical or emotional, as a result of such activity. If there is reason to suspect that the child has been injured, that person is then required to report such suspicions and the reasons therefore.

Kansas Att’y Gen. Op. No. 92–48, 1992 WL 613410 (April 6, 1992) (hereafter “Stephan Opinion”) (emphasis added). The Stephan Opinion did not equate underage pregnancy with “inherent injury,” which would automatically trigger reporting. Instead, it placed reporters on notice that the statutory standard of sexual abuse probably had occurred and that the reporter should investigate further to determine if there was injury. Thus, the Stephan Opinion acknowledged the broad statutory scope of the term “sexual abuse,” but it left the reporter to determine if there was reason to suspect the child had suffered an injury requiring reporting, which is consistent in every respect with the statutory language.

pregnancy:

We are aware that although this opinion is limited to the question posed, the consequences of the conclusion reach further. Other situations that might trigger a mandated reporter’s obligation, because sexual activity of a minor becomes known, include a teenage girl or boy who seeks medical attention for a sexually transmitted disease, a teenage girl who seeks medical attention for a pregnancy, or a teenage girl seeking birth control who discloses she has already been sexually active.

Attorney General Stephan’s successor, Carla Stovall, reached a similar conclusion in a letter dated June 3, 1999. However, on June 18, 2003, Kansas Attorney General Phill Kline issued an opinion seeking to significantly change the standard for reporting. His opinion, in part, states:

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.

*1100 Kansas Att’y Gen. Op. No.2003–17, 2003 WL 21492493 (June 18, 2003) (emphasis added). In reaching this conclusion, the Attorney General looked beyond the statute’s language and beyond the law of the State of Kansas. His opinion that the minor’s pregnancy is “inherently injurious” eliminated the reporter’s discretion to determine whether the minor had been “injured.” Further, as the Attorney General’s opinion acknowledges, such “inherent injury” reaches beyond a minor’s

Kline Opinion, 2003 WL 21492493, at *6 (emphasis added). Thus, if all illegal sexual activity of a minor is considered sexual abuse and is per se injurious, then pursuant to the Kline Opinion, a mandatory reporter must automatically report any indication that a minor is sexually active.

E.  Procedural History

On October 9, 2003, a few months after the Kline Opinion issued, plaintiffs brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against application of the reporting statute to incidents of consensual sexual activity between minors under the age of sixteen and persons of similar age when mandatory reporters conclude, in their professional judgment, that  the sexual activity did not injure the minor. Complaint, ¶

11 (same as Third Amended Complaint, ¶ 11). The  district court certified the plaintiffs as a class largely comprising licensed professionals, including physicians, nurses, social workers, psychologists and sexuality educators. Dkt. No. 60. The Complaint named as defendants the Attorney General of Kansas and all county and district attorneys of Kansas. Complaint, ¶ 46 (identifying all county and district attorneys of Kansas); Third Amended Complaint, ¶¶ 38, 39 (identifying Attorney General Kline).

***

As relief, the complaint sought: 1) preliminary and

permanent injunctions “barring the defendant class from enforcing the reporting statute to require plaintiffs to report consensual sexual activity between an adolescent under the age of 16 and a person of similar age where plaintiffs do not reasonably suspect injury to the adolescent;” and 2) a declaration “that the reporting statute is unconstitutional as applied to consensual sexual activity between an adolescent under the age of 16 and a person of similar age where the mandatory reporter does not reasonably suspect injury to the adolescent.” Complaint, ¶ 70. Since then, plaintiffs have *1101 amended the complaint to include other grounds.

***

II.  CONCLUSIONS OF LAW

A. Statutory Interpretation

The interpretation of the Kansas reporting statute is of central importance to this case. That being so, the court considered certification to the Kansas Supreme Court. Because a federal court’s determination of state law is not final, the state court’s interpretation on this issue would be helpful. See United States v. Thirty–Seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28

L.Ed.2d 822 (1971) (noting that federal courts “lack jurisdiction authoritatively to construe state legislation”).

[4] However, such certification should be utilized only if the construction of state law is subject to doubt. See Stenberg v. Carhart, 530 U.S. 914, 945, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Houston v. Hill, 482 U.S. 451, 468–471, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (certification should not be used where “there is no uncertain question of state law”); Grant v. Meyer, 828 F.2d 1446, 1448 n. 5 (10th Cir.1987) (refusing certification “since the statute is unambiguous”). As more fully discussed below, the court finds that the reporting statute is clear and unambiguous; therefore, certification is unnecessary.

[5] As a general rule, if the language of a statute is clear in its application, the court is bound by it. Hubbard v.  United States, 514 U.S. 695, 703, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995). “If the statutory language is clear, this will ordinarily end the analysis.” See, e.g., United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.1991), cert. denied, 501 U.S. 1207, 111 S.Ct. 2803, 115 L.Ed.2d 976 (1991).

As noted above, the Kansas statute mandates reporting by certain persons who have “reason to suspect that a child has been injured as a result of ... sexual abuse.” Kan. Stat. Ann. § 38–1522(a) (emphasis added). This language has remained unchanged since its enactment in 1982. Senate Bill No. 520, ch. 182 § 19 (1982).

Examining its separate components, the clause recognizes that a mandatory reporter must identify two things: 1) there is reason to suspect that the child has been injured; and 2) the injury resulted from sexual abuse. The meaning of the terms “injured” and “sexual abuse” are important to the court’s analysis. As mentioned above, the legislature has defined “sexual abuse” in Article 35, Chapter 21 of the Kansas Statutes. Kan. Stat. Ann. § 38–1502(c). However, it has not defined “injury.”

*1102 The Stephan Opinion noted that “injury” is not defined in the code for care of children, Kan. Stat. Ann. § 38–1501 et seq., which includes the reporting statute. Although some statutory provisions recognize that “injury” includes physical, mental or emotional abuse or neglect, Kan. Stat. Ann.1991 Supp. § 38–1502(b), past SRS programs did not list pregnancy as a per se injury. After reviewing the scant legislative history and case law approaches to pregnancy, the Stephan Opinion concluded that “... pregnant, unmarried minors may likely display signs of emotional, physical or mental injuries which should be reported. However, we do not believe that pregnancy of an unmarried minor necessarily constitutes injury even when that term is understood in its broadest sense.” (Emphasis added). Ultimately, the Stephan Opinion held that pregnancy is not itself an injury but a natural condition, so reporting a pregnancy as sexual abuse must be determined on a case-by-case basis.

The Kline Opinion, on the other hand, shifted the focus away from the condition of pregnancy and toward the underlying sexual intercourse, which it claims constitutes an inherently injurious and harmful act. Since the legislative history of the reporting statute is limited, the Kline Opinion examined insurance case law where a federal district court in this district described sexual abuse as inherently harmful.6 The Kline Opinion states that the consensus opinion of the courts is that sexual abuse of a minor is inherently harmful. Despite the focus on case law to understand statutory language, the Kline Opinion noted that it is not the function of the courts to write legislation but only to construe statutes.

***

If “injury” is the equivalent of “sexual abuse,” as the Attorney General contends, then the requirement of an

“injury” in the reporting statute is rendered meaningless. The statutory language does not require reporting of all illegal sexual activity of minors; it requires reporting of such sexual activity if there is “reason to suspect injury.” Therefore, the statute requires reporting of illegal sexual activity that causes injury, not all illegal sexual activity. See United States. v. American Trucking Ass’ns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)

(“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”).

The legislature included a very specific phrase in the statute: “reason to suspect that a child has been injured as a result of ... sexual abuse     ” This phrase vests a degree

of discretion in the reporter not only to determine suspected sexual abuse, but also resulting injury. Cortez v. Pawnee Mental Health Serv., Inc., 77 P.3d 1288, 2003 WL 22283159, at *3 (Kan.App.2003) (noting that the Kan. Stat. Ann. § 38–1522 requires a “reason to suspect” before mandating reporting); Kansas State Bank & Trust Co. v. Specialized Transp. Serv., Inc., 249 Kan. 348, 372, 819 P.2d 587, 604 (1991) ( “The decision to report suspected abuse should be based on something more than suspicion.”). The legislature acknowledged that not all illegal sexual activity involving a minor necessarily results in “injury;” thus, not all unlawful sexual activity warrants reporting. The language of the statute recognizes that some illegal sexual conduct, such as consensual, voluntary sexual activity with an age-mate, falls outside the scope of the *1103 statute, as it may not cause injury. See BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124

S.Ct.   1587,   1593,   158   L.Ed.2d   338   (2004)   citing

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“The

preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ”).

Therefore, the court finds that the legislature’s inclusion of the phrase “reason to suspect that a child has been injured” requires reporters to determine if there is a  reason to suspect injury resulting from sexual abuse. “Injury” and “sexual abuse” are distinct concepts under the statute. Any attempt to conflate the meaning of these terms is contrary to a plain reading of this statute.

This reading is consistent with the agency policies developed following enactment of the statute, as set out in an earlier part of this opinion. See American Trucking,

310 U.S. at 544, 60 S.Ct. at 1064 (“A few words of general connotation appearing in the text of statutes should not be given a wide meaning, contrary to a settled policy, excepting as a different purpose is plainly shown.’

”) (citations omitted). SRS policy acknowledges sexual abuse to be coextensive with the statutory definitions,7 but it does not consider investigation of all illegal sexual activity involving a minor to be necessary or appropriate. SRS Manual § 1361. Where a report does not indicate a child “has been harmed or is likely to be harmed” or where the report concerns “ ‘lifestyle’ issues that do not directly harm a child or place a child in a likelihood of harm,” SRS screens out the report. SRS Manual § 1361. SRS does not extend services in cases of consensual, age-mate sexual exploration with no evidence of force, coercion, or significant age disparities. SRS Manual § 1361, Practice Notes. SRS’s policy interpretation creates  a distinction between broad statutory definitions and working definitions on which investigations are actually conducted.

7                  SRS Manual § 160 defines “sexual abuse” as “any act committed with a child that is described in, [Kan. Stat. Ann. § ] 21–3501 et seq. and amendments thereto and the acts described in [Kan. Stat. Ann. § ] 21–3602 and [Kan. Stat. Ann. § ] 21–3603 and amendments thereto.”

The 1992 Stephan Opinion and the Stovall letter of 1999 both were plain language readings of the reporting statute. Both Stephan and Stovall gave full meaning to the reporting statute, requiring that the reporter have not only reason to suspect abuse, but also reason to suspect injury resulting from it. From a reporter’s standpoint, as supported by their trial testimony, the reporting statute was clear, and the reporters were not only authorized, but compelled, to make a case-by-case determination as to whether injury occurred.

[6] The Attorney General is not only allowed to, but also is required to render an opinion on his interpretation of the law under certain circumstances. See Kan. Stat. Ann. § 75–704 (the Attorney General, when required, provides written opinions “ ... upon all questions of law submitted to him or her by the legislature, or either branch thereof, or by the governor, secretary of state, state treasurer, state board of education, or commissioner of insurance.”); Kan. Stat. Ann. § 77–420 (directing Attorney General review of any state agency rule or regulation). However, true interpretation of law is a judicial function, not an executive or legislative function. Board of Comm’rs v. General Sec. Corp., 157 Kan. 64, 138 P.2d 479, 479 (1943). An executive branch official, such as the Attorney General, cannot effectively amend *1104 legislation by reinterpreting its language through an “advisory” opinion. See In re Allen, Gibbs & Houlik, L.C., 29 Kan.App.2d 537, 545, 29 P.3d 431, 439 (Kan.App.2001) (“[A] statute should not be so read as to add that which is not readily

found therein or to read out what as a matter [of] ordinary English language is in it.” (citations omitted)). The legislature has not chosen to delete the “reason to suspect that a child has been injured” language from the reporting statute; the Attorney General cannot amend the statute by an advisory opinion See State ex rel. Stephan v. Finney, 251  Kan.  559,  578,  836  P.2d  1169,  1182   (Kan.1992)

(“And 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,8 in contravention of the plain language of the statute and legislative intent as evidenced in the statute’s clear and unambiguous language. American Trucking, 310

U.S. at 543, 60 S.Ct. at 1063. The court’s interpretation neither reads phantom language into the statute, nor cuts from the statute language the legislature deliberately placed there.

***

Accordingly, the court holds that the Kline Opinion contradicts the plain meaning of the statute for two related reasons. First, the Kline Opinion inappropriately strikes the legislature’s placement of discretion in the hands of licensed professionals by ignoring the phrase “reason to suspect that a child has been injured” as a result of sexual abuse. Second, the opinion wrongly redefines the common understanding of both state agencies and mandatory reporters by denoting all sexual activity to be “inherently injurious.”

***

IV. CONCLUSION

This opinion does not change in any respect the law or policy as it has been applied in Kansas since 1982;

has a reasonable suspicion of injury caused by abuse of any kind, the reporter must continue to notify SRS. So this case is not about whether adult sexual predators will escape detection. The reporting statute, as enacted by the Kansas legislature, concerns identifying true victims of abuse so they can obtain assistance and protection. Contrary to defendants’ claims, a prosecutor is not in a better position to make an initial determination of “injury,” as required by statute, than is a health care professional.

This case certainly is not about promoting sexual promiscuity among underage persons. Each and every witness testified that underage sex should be discouraged. No witness suggested that sexual intercourse under the age of twelve should not be reported. At the same time, a plain language interpretation of the reporting statute acknowledges the importance of the health care professional’s ability to obtain and maintain a young patient’s confidence in order to treat the patient appropriately. It recognizes that sexual activity among underage persons occurs, and that any such activity that injures the minor will be reported.

The court holds that a plain reading of the statute vests mandatory reporters, such as health care providers, with discretion to determine when there is “reason to suspect a child has been injured” as a result of sexual abuse. The Attorney General would impose a “zero tolerance” reporting rule for a broad but as yet undetermined range of underage sexual activity, eliminating all discretion on the part of the reporter. Where the legislature has unquestionably placed such discretion in reporters, to require reporting in every instance would be as contrary  to the law of Kansas as not reporting at all.

IT IS ACCORDINGLY ORDERED this 18th day of April 2006, that the court grants plaintiffs a permanent injunction as prayed for in their Amended Complaint.

All Citations

427 F.Supp.2d 1093