Issues & Implications If this were not complicated enough, the obligation to report statutory Statutory Rape Reporting and rape is governed not by these crimi- nal laws but by an entirely separate Programs: set of child welfare laws; these laws require certain individuals who tend Moving Beyond Conflict to have frequent contact with chil- dren to report of known or sus- By Cynthia Dailard pected cases of child abuse to child welfare agencies or law enforcement. Laws that make having sex with a transmitted infections (STIs) and The definition of child abuse in all minor under a given age a crime are other negative health outcomes. on the books in every state, primar- Moreover, wholesale reporting of Family planning pro- ily to protect young females from large numbers of teens simply viders are already at sexual exploitation, especially by because they have had sex ulti- older men. In certain circumstances mately will prove counterproductive the forefront of efforts that vary widely across the states, to the goal of punishing genuine to identify sexual abuse family planning providers—who are cases of abuse and exploitation. and victimization in obligated under the federal Title X Indeed, by virtue of their training teens and others. program to provide confidential con- and client contact, they say, family traceptive services to teenagers on planning providers are already at the request—also may be obligated to forefront of efforts to identify sexual states includes sexual abuse; how- report instances of such “statutory abuse and victimization in teens and ever, the definition of sexual abuse rape” to state authorities. others. Requiring them to report varies from state to state, and only cases of sexual activity among about half of these state laws explic- Since the late-1990s, some policy- teenagers beyond those that they itly mention statutory rape. Health makers and others who argue that believe, in their professional judg- care professionals are typically teenagers should be required by law ment, are truly dangerous, coercive included within the list of designated to involve their parents in order to or exploitive will ultimately under- individuals who are required to receive contraceptive care have mine societal efforts to protect report. attempted to capitalize on the issue young people from harm. of statutory rape enforcement to fur- Gaining Traction? ther their cause. These advocates A Statutory Rape Primer have been trying to make the case Some conservative policymakers that family planning providers are Understanding what constitutes have seized upon the issue of statu- using confidentiality as a shield not statutory rape and who is mandated tory rape in order to vilify family just to deny parents important infor- to report it requires familiarity with planning providers and to undermine mation about their children’s behav- two discrete areas of law that vary the very notion of confidential ser- ior but also to prevent state authori- considerably from state to state. vices. In 1998, Rep. Don Manzullo ties from taking actions to protect This complexity can make navigat- (R-IL) launched a self-described “leg- young people’s welfare. Beyond vig- ing when and under what circum- islative assault” on the federal Title X orously enforcing existing statutory stances sexual activity among teens family planning program, citing the rape reporting requirements, they should be reported to state authori- case of a Title X–funded clinic in his contend, these requirements should ties difficult. district that failed to inform the be broadened. authorities or the parents of a 14- First, every state’s criminal code year-old girl when a 37-year-old Family planning providers are con- prohibits sexual activity with a teacher with whom she was having cerned about this increasing politi- minor below a certain age, based on an affair brought her to the clinic for cization of the statutory rape issue. the premise that the minor is legally contraception. Few disagreed that Pointing to an abundance of data as incapable of consenting to sex. this incident should have been well as their clinical experience, These crimes are commonly referred reported, given the age disparity and they argue that a guarantee of confi- to as statutory rape. When it comes the teacher’s position of authority dentiality is critical to many teens’ to penalties, however, these laws over the student. However, Manzullo willingness to seek medical care and typically impose a range depending used this single extreme case to that undermining it will only result on the age of the “victim” and the argue for an amendment to an in more teen , sexually age difference between the victim annual funding bill that would have and “perpetrator.”

The Guttmacher Report on Public Policy June 2004 10 vitiated Title X’s guarantee of confi- ing who discloses she funded clinics comply with state dentiality by requiring clinics to has already been sexually active.” laws on child abuse, child molesta- notify parents in writing before pro- The constitutionality of the opinion tion, sexual abuse, rape and incest. viding a prescription contraceptive to is currently being challenged in Specifically, it will evaluate oversight a minor. Although the provision was court by the Center for Reproductive of the reporting requirement by the defeated in Congress, compromise Rights, on the grounds that it vio- Office of Population Affairs (which language was added to the funding lates young women’s right to privacy. runs the Title X program), and bill simply reiterating that Title X “determine whether Title X grantees providers must comply with state Similarly, since the late 1990s, a have operating procedures to ensure reporting requirements. rider attached to an annual funding that their employees know when and bill for the Texas Department of how to report instances of suspected Recent activity in two states suggests Health conditions state funding for underage sexual abuse.” Additionally, that the campaign to use mandatory family planning clinics and other DHHS has awarded a contract to a reporting requirements to restrict grant recipients on a showing of private consulting group to conduct minors’ access to confidential health good faith efforts to comply with the a separate study to collect informa- care may be gaining a toehold. A state’s child abuse reporting law. tion about state statutory rape laws 2003 opinion letter by the Kansas Perhaps even more significant for and analyze how DHHS programs Attorney General interpreting the family planning providers, however, and their grantees relate to these state’s statutory rape reporting was a 2001 change in Texas law that laws. The three programs being stud- requirement says that removed the discretion of health ied include Title X, Community providers must report any minor care professionals in deciding Health Centers and child protective under the age of 16 who seeks an whether or not a patient is a victim services. The study will explore a abortion. According to the opinion of abuse. As a result, family planning host of issues, including grantees’ letter, sex that is illegal under state providers must effectively now knowledge of state law, their proto- law—namely, sex with someone report all cases of sexual contact cols for addressing reporting, forms that involve clients younger than 17, used for reporting, record keeping of Some conservative unless the client’s partner is less reports, training of providers, refer- policymakers have seized than three years older than the ral networks, and how the issue of client. (To protect their funding, confidentiality is addressed. Finally, upon the issue of statu- family planning providers must doc- DHHS has established a statutory tory rape in order to ument in the client’s medical record rape working group that meets vilify family planning that they have asked about the part- monthly and involves high-level gov- providers and to under- ner’s age.) They must also report all ernment officials. cases of sexual contact that involve mine the very notion of clients younger than 14, regardless Provider Concerns confidential services. of the partner’s age. The motivation for this recent fed- under the age of 16—is inherently In addition to this state activity, eral activity and its policy implica- injurious and therefore must be there are signs that the federal gov- tions are currently unclear. However, reported to state authorities; preg- ernment is beginning to shine a given the events in Kansas and nancy constitutes evidence that spotlight on this issue as well. In Texas, family planning providers are such an injury has occurred. The 2003, a cadre of staunch family understandably concerned about the opinion acknowledged that planning opponents, including Reps. potential impact on client confiden- “although this opinion is limited to Chris Smith (R-NJ), Mark Souder (R- tiality—and on the ability and will- the question posed [about abortion IN) and Dave Weldon (R-FL), ingness of teenagers to obtain the providers], the consequences of the requested that the Department of counseling and medical services they conclusion reach further. Other situ- Health and Human Services (DHHS) need. Although there is no research ations that might trigger a mandated investigate charges by Life to date documenting the specific reporter’s obligation, because sexual Dynamics, Inc (LDI), a radical anti- impact of statutory rape reporting activity of a minor becomes known, choice group, that family planning on minors seeking reproductive include a teenage girl or boy who providers are trying to circumvent health services, such information seeks medical attention for a sexu- state child abuse reporting require- can be extrapolated from similar ally transmitted disease, a teenage ments. Shortly thereafter, the DHHS research involving teens and par- girl who seeks medical attention for Office of Inspector General ents. Research from as far back as a , or a teenage girl seek- announced that it will focus on the the late 1970s has found that many statutory requirement that Title X– minors will not seek important fam-

The Guttmacher Report on Public Policy June 2004 11 ily planning and related preventive costs in Texas as the result going on, but the police are ignoring health care if they need to inform of unintended pregnancies among most.” Romberg continues, “We used their parents. More recently, a study teens receiving publicly funded to be part of the solution [to the appearing in 1999 in the Journal of services. problem of teenage sexual victimiza- the American Medical Association tion]. Now we are part of the (JAMA) found that a significant per- In addition to expressing concerns problem.” centage of teenagers had decided not about patient confidentiality, experts to seek health care that they contend that the effort to single out Toward an Enlightened Policy thought they needed due to confi- family planning providers is mis- dentiality concerns. With respect to placed. According to Sue Hilton, Abigail English, director of the reproductive health care specifically, executive director of Missouri Center for Adolescent Health & the a 2002 study also published in JAMA Family Health Council, these Law and the nation’s foremost providers have been at the forefront authority on the impact of statutory Statutory rape reporting of the effort to identify abuse and rape laws on access to health care, among family planning sexual victimization in this country, agrees that increased statutory rape reporting “is a rather blunt tool for providers has gone up among teens and others. “Family planning clinicians are trained to dealing with the very real problem of substantially because of identify abuse and have appropriate sexual victimization among teens.” changes to Texas law. As reporting protocols in place.” She She notes, however, that there is a a result, law enforcement continues, “As professionals, we way to better protect those who are being victimized while preserving agencies have been inun- know how and when to work with law enforcement or social services in teens’ access to confidential care. dated with reports, with constructive ways to help young States, she suggests, could amend or most ending up in file people. We also encourage teens to interpret their child abuse reporting drawers with no action involve their parents in decisions statutes to target specific behaviors that are truly exploitive or abusive. taken. about sexual activity and counsel them about how to avoid coercive Alternatively, they could exempt found that almost half of sexually sexual activity,” both of which are from the mandatory reporting active teens (47%) visiting a family required under law of Title X–funded requirement providers of confiden- planning clinic would stop using providers. tial health care or allow for health clinic services if their parents were care provider discretion in determin- notified that they were seeking birth The Texas experience, moreover, ing whether abuse has occurred. control, and another 11% reported suggests that calls for blanket report- that they would delay testing or ing of all sexual activity among teens These options, she notes, would treatment for STIs, including HIV; may be counterproductive. Peggy lessen the burden on law enforce- virtually all (99%), however, reported Romberg, CEO of the Women’s ment or child welfare agencies of that they would continue having sex. Health and Family Planning unwarranted reports, enable health Association of Texas, notes that care providers to maintain the trust Researchers, moreover, are attempt- statutory rape reporting among fam- of their adolescent patients based on ing to quantify the public health and ily planning providers has gone up their ability to maintain confidential financial costs in Texas created by substantially because of changes to care and allow sexually active ado- the 2001 reporting requirement and Texas law. As a result, law enforce- lescents to seek health care without a 2003 parental consent require- ment agencies have been inundated fear that doing so will automatically ment for family planning services. A with reports, with most ending up in result in a report to child welfare or study to be published next year in file drawers with no action taken. law enforcement authorities. The Archives of Pediatric and “Historically, we [family planning “Ultimately,” English says, “these Adolescent Medicine concludes that providers] have been the partners of alternatives have a better chance of the loss of confidentiality in Texas law enforcement agencies in identi- protecting adolescents than many of will significantly increase pregnan- fying and reporting actual sexual the existing approaches.” cies, births and among abuse of teens, including by inappro- This article was supported in part by a grant Texas teens. The lead author of the priate adult partners. When we filed from the Prospect Hill Foundation. The study, Luisa Franzini of the a report, law enforcement agencies conclusions and opinions expressed in the University of Texas Health Science took it seriously. Now that we are no article, however, are those of the author and The Alan Guttmacher Institute. Center at Houston, adds that this longer allowed to exercise our dis- would significantly increase annual cretion, there is a lot more reporting

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