Anti-Choice Advocates Abuse Statutory Rape Reporting Laws to Target Abortion Providers

Public health experts say there is a legitimate purpose to statutory rape and incest laws. However, in the context of abortion, these laws are effectively criminalizing normal teen sex and risk compromising patient-confidentiality agreements, as well as potentially deterring patients from seeking sexual health treatment.

Experts questioned whether child-abuse reporting laws have any significant impact on stopping sexual abuse, but they are certainly having an impact on abortion providers. Doctor report via Shutterstock

See other pieces from Rewire‘s State of Abortion series here.

Review the database of state documents collected and analyzed by Rewire here.

When a 13-year-old girl came to Dr. Ulrich Klopfer’s Fort Wayne, Indiana, clinic seeking an abortion in February, the doctor terminated the teenager’s pregnancy, and then—as required by state law—he informed the authorities, he says.

Klopfer said he faxed a report to one of the state agencies he is required to notify in compliance with an Indiana statute that mandates all abortions be reported to the state once every six months.

Now, that report is the subject of a complaint against Klopfer, filed by anti-choice activists who obtained it through a public records request. The document gives no details on the father of the aborted fetus, but does show the date on which the procedure was performed.

“It’s heartbreaking to learn that a 13-year-old became pregnant and now must live with the pain of an abortion for the rest of her life, but it’s doubly heartbreaking that Dr. Klopfer’s failure to report the abortion may have allowed the girl’s molester to walk free,” said Cathie Humbarger, an anti-choice activist and executive director of the Allen Country Right to Life, in a press release.

In fact, there was no indication that the girl had been subject to molestation. Nor was there any suggestion that the abortion was illegal. The complaint was instead based on a requirement of Indiana’s statutory rape notification law that says providers must report abortions performed on minors to the state health and child services departments within three days of the abortion. Humbarger claims that Klopfer waited too long to report the abortion, falling foul of the three-day time limit. Klopfer disputes the allegation, saying he complied with all relevant time limits.

The case could have severe consequences for Dr. Klopfer. In their complaint against him, Humbarger and another anti-choice activist pointed out that Klopfer’s report of the minor’s abortion was marked as being received by the health department in late July, despite the procedure having been performed in February. They have asked the state attorney general’s office to immediately suspend Klopfer’s medical license pending a full investigation.

Klopfer said he complied with the law, though he admitted he did not notify the child services department in addition to the health department, which goes against the statute. The doctor said he expected the departments to communicate with each other. But due to the risks inherent in the mandatory notification laws, he said he now advises minor patients and their parents that they have the option to go to Illinois or Ohio—bordering states—if they want to avoid having their abortions reported. He estimated that up to a third of patients take that option.

Disputes like this are becoming more common as a growing number of states adopt requirements for abortion providers to report all abortions performed on minors as possible cases of rape or incest, even where there is no actual evidence that either of those crimes has occurred. The laws have led to disciplinary actions and, in some cases, clinic closures, according to an analysis of state documents obtained by Rewire as part of our State of Abortion series. In many cases, the disciplinary proceedings are sparked by complaints from anti-choice groups, which are increasingly influential in crafting and passing the laws in the first place, and use them as part of a smear campaign against abortion care by trying to associate abortion with sexual abuse.

Public health experts say there is a legitimate purpose to statutory rape and incest laws: They encourage health-care providers to check for evidence of sexual abuse among young patients. However, in the context of abortion, these laws are effectively criminalizing normal teen sex and risk compromising patient-confidentiality agreements, as well as potentially deterring patients from seeking sexual health treatment, experts told Rewire.

“I think it’s very important that young people who are involved in sexual activity of whatever sort and with whatever age of partner feel free to seek medical attention associated with their sexual activity,” said Abigail English, an adolescent health legal expert and director of the Center for Adolescent Health & the Law in Chapel Hill, North Carolina.

English said a particular problem with many of these laws is that they strip away a provider’s discretion to determine whether sexual relationships involving minors are consensual or coercive.

“To the extent that the child abuse reporting laws are structured in a way that discourages that, it’s very unfortunate,” she said.

Experts questioned whether these laws have any significant impact on stopping sexual abuse, but they are certainly having an impact on abortion providers, who are now at greater risk of disciplinary actions and who sometimes face the predicament of sending vulnerable patients out of state to avoid the pitfalls of reporting laws.

A Tangled Web of Laws

Statutory rape laws follow the premise that, under a certain age, individuals cannot consent to sexual activity because they cannot grasp the ramifications of sex. Every state and the District of Columbia address statutory rape through criminal laws and civil reporting laws.

The criminal laws determine at what age an individual can legally consent to sex; mandatory reporting laws determine when sex with a minor of a certain age needs to be reported to law enforcement or child protective services and who must report this sex. In many states, certain professionals, such as doctors and nurses, are designated as “mandatory reporters,” meaning they are obliged to tell authorities when they become aware of certain instances of sex involving a minor.

But most states handle the terms of these laws in different ways. In fact, statutory rape criminal and reporting laws resemble a tangled web of convoluted policies that can make compliance difficult.

A federally funded comprehensive guide to statutory rape criminal and reporting laws published in 2004 explains that, as of 2003, only about a dozen states have a single age of consent, ranging from 14 to 18 years old. For example, in Kansas it is considered statutory rape to engage in sexual activity with a minor 15 years old or younger, regardless of the age of the sex partner.

Most states, however, determine the age of consent—in other words, when sex involving a minor is a crime—based on the ages and age differences between partners. Under Indiana’s “sexual misconduct with a minor” law, for example, it is considered statutory rape for a person at least 18 years of age to have sexual intercourse with a minor who is at least 14 but under 16. The penalties increase if the alleged offender is at least 21 years old and/or if the sexual intercourse is committed “by using or threatening the use of deadly force.”

States also differ on who is required to report potential instances of statutory rape and under what circumstances. According to the 2004 report, which was produced by the Lewin Group, a health-care consulting firm, about one-third of states mandate reporting only when the sexual abuse involves a relative or guardian, while two-thirds mandate reporting of potential child abuse, including statutory rape, regardless of the relationship between the “victim and the defendant.”

Many anti-choice advocates argue that young women and girls seeking abortions are often the victims of statutory rape, incest, or sex trafficking and that abortion providers actively ignore statutory rape reporting laws. Anti-choice groups, such as Live Action, have suggested that abortion providers safeguard rapists; others, such as the Charlotte Lozier Institute, have suggested that reproductive health facilities help to “perpetuate sex trafficking of women by failing to identify and rescue trafficked women and girls.”

There is little comprehensive research, however, to suggest that the majority of minors who seek abortions are more likely to have been victims of rape and incest than those who don’t seek abortions.

Though there are detailed, albeit knotty, requirements in every state about what to report, when, and to whom, statutory rape is often lumped in with sexual offenses or child sexual abuse in local and national data reporting. As a result, “little is known about the scope of statutory rape,” according to a subsequent Lewin Group report published in 2006.

The nonprofit research center Child Trends periodically attempts to assess rates of statutory rape among young people in the United States. In its most recent report, Child Trends analyzed data from the National Survey of Family Growth and found that, from 2006 to 2010, among individuals ages 18 to 24, 10 percent of females and 6 percent of males reported having their first sexual experience at age 15 or younger with an individual who was at least three years older, which Child Trends defined as statutory rape.

Though many health-care providers wish teenagers would wait longer before having sex, many also agree that statutory rape laws sometimes interfere with treating minors who, despite such laws, have chosen to engage in consensual sexual activity. In 2004, four major medical organizations that deal with adolescents—the American Academy of Family Physicians, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the Society of Adolescent Medicine—published a position paper in the Journal of Adolescent Health, arguing that some of the nation’s statutory rape reporting laws, and some of the interpretations of such laws, posed the risk of impeding the provider-patient relationship and were thus “detrimental to adolescents.” The article notes that providers should be allowed to use their discretion when looking for evidence of coercive sexual relationships and should not assume that sexual activity and sexual abuse are synonymous, even among adolescents.

“Well-intentioned but rigid laws can lead to outcomes that are both unintended and potentially damaging to the health of an adolescent,” the paper notes. “When a state’s laws require that sexual intercourse with a minor be reported to law enforcement or child welfare agencies, a sexually active adolescent in a consensual relationship may be placed in the untenable situation of forgoing essential health care (e.g., contraception, screening or treatment for sexually transmitted diseases, etc.) or, if he or she seeks that care, being reported to state authorities.”

In addition to potentially dissuading teens from seeking health care, it is also unclear to what extent instances of statutory rape are actually investigated, even once a report is made.

In its research, the Lewin Group found that child welfare agencies receive the majority of statutory rape reports but that many of these agencies often only investigate cases involving a family member. The child protection agencies will usually then forward along the report to the appropriate law enforcement agency, but the Lewin Group researchers noted that many times, the report will lack “sufficient details to warrant further investigation.”

Abortion providers have reported a similar trend when it comes to submitting their required statutory rape reports.

Dr. Ann Kristin Neuhaus, a former family doctor and abortion provider in Kansas, had her medical license revoked last year following a state investigation launched by then-Kansas Attorney General Phill Kline, allegedly to determine whether abortion clinics were complying with statutory rape reporting laws.

The Kansas State Board of Healing Arts ultimately ruled that the mental health examinations Neuhaus gave to 11 young women—to determine if they should be granted second- and third-trimester abortions—did not meet the state’s standard of care. The accusations were based on some of Neuhaus’ files generated using a computer program. Neuhaus disputes the main charges against her; for example, she said the board accused her of never having met some of the patients she said she consulted with because her signature was missing on some of the documents. She is currently appealing the board’s decision.

But Neuhaus told Rewire that, to her knowledge, most of the cases she reported to child protective services were never even investigated.

“If it was something questionable, then they would investigate it, but the vast majority of things that get reported are consensual sex with people between the ages of 14 and 16,” Neuhaus said.

Yet, in recent years, some state attorneys general have used statutory rape reporting requirements as a means to obtain abortion providers’ medical records, normally protected under federal privacy laws.

What transpired in Kansas resulted in minors’ private medical records being broadcast on a cable news show.

The quest for records began in 2003, when, after becoming attorney general, Kline reinterpreted a state law to demand that abortion providers report every minor under 16 who has an abortion—whereas the old law only stipulated that medical professionals had to report when they suspected minors had been injured as a result of sexual abuse.

Kline launched a years-long “investigation” into Kansas’ abortion clinics and subpoenaed patients’ medical records at a Planned Parenthood clinic in Overland Park and at Dr. George Tiller’s abortion clinic in Wichita. Kline’s stated reasoning for the investigation was to check whether the clinics were complying with statutory reporting requirements, as well as state laws restricting post-viability abortions. Following three years of disciplinary proceedings against Kline, last month the Kansas Supreme Court indefinitely suspended Kline’s law license for violating rules of professional conduct in relation to his prosecution of abortion providers.

According to Neuhaus, who worked as a consultant to Tiller from 1999 to 2007, the state never found evidence that instances of suspected statutory rape were going unreported. However, she said the state attorney general’s office used the investigation into statutory rape reporting requirements to look at the medical records of the abortion clinics.

“Then they used those records to dig for other things and to create more trouble,” Neuhaus said.

In the end, the state’s charges against Neuhaus involved her referrals for post-viability abortions rather than breaching the statutory rape reporting policy.

As part of her role with Tiller, Neuhaus provided second opinions for abortions involving fetuses that were beyond the point of viability, which is deemed to be 22 weeks’ gestation under Kansas law. In order to perform abortions in those circumstances, the law requires a second doctor’s opinion stating the abortion is necessary for the health of the pregnant person.

Neuhaus said she intentionally made her records sparse in order to protect her patients’ privacy—she worried they might someday become public. Her fears were realized one day in September 2011, when Fox News’ Bill O’Reilly broadcast information, allegedly from Neuhaus’ medical records, on his show, The O’Reilly Factor.

“This is Case File Number 3,” O’Reilly said in a segment recorded by liberal media watchdog Media Matters for America. “Dr. Neuhaus diagnosed a 15-year-old girl, who said she had a mental depression because she couldn’t bear not being able to continue riding in a rodeo.”

Neuhaus said she believes O’Reilly’s information came directly from her medical files, though to this day she does not know how O’Reilly obtained them. She told Rewire that some of her medical files were momentarily seized—and then returned to her—by one of Kline’s lawyers during their investigation of Neuhaus’ consultation practice for Tiller’s patients.

As for the characterization of her patient, transcripts from the hearings into Neuhaus’ case show that the 15-year-old girl O’Reilly referred to was training to be a professional barrel racer and had become depressed, according to Neuhaus’ diagnosis, because she feared having a baby would ruin her career ambitions.

Following the investigation, Neuhaus was ultimately charged with providing “inadequate” consultations to 11 women between the ages of 10 and 18 who sought abortions after 22 weeks’ gestation. (Tiller was acquitted of charges filed against him in March 2009; the state opened new charges but dropped them after he was murdered by an anti-choice extremist two months later.)

Neuhaus, who is now a research fellow at the University of Kansas Medical Center, said she would have documented more about these cases had she not feared the confidentiality agreement between her and her patients would have been breached, as they were. And while the reports in her case were required because they involved later pregnancies, many providers and public health advocates say the same risks are posed by laws that require reporting of any abortions involving minors.

Neuhaus said she believes wholeheartedly in statutory rape reporting laws but thinks Kansas’ rigid age restrictions are problematic, because the state defines sex with a minor under 16 years old as rape, regardless of the circumstances.

“Anyone who works with teenagers knows that it is normal teen behavior and that teens do have sex,” she said. “They generally start having sex somewhere between 14 and 16. So, this is the norm; it’s not the exception. And it goes on regardless of whatever other legislation is in place. … People are pretty sure that at 16, you’re not fully adult. However, there is this other element that people go through puberty and they start doing things that may or may not be in their best interest, but it’s happening anyway. So to criminalize it is kind of stupid and counterproductive.”

Anti-Choice Activists Use Laws to Force Clinic Closures

In some cases, breaches of statutory rape reporting requirements have resulted in abortion providers and clinics either being disciplined or shuttered. Rewire’s recent investigation into documents requested by two congressional committees turned up a handful of reports of violations in Alabama and Louisiana between 2008 and 2013 related to mandatory statutory rape reporting. But the information provided by state health departments only tells part of the story.

In response to questions from the House Energy and Commerce Committee, the Alabama Department of Public Health reported that in June 2010 the state revoked the license of the Summit Women’s Center of Montgomery, Inc., also known as the Beacon Women’s Center. The eventual closure of the Montgomery, Alabama, clinic was based on a series of violations, including failure “to report an instance of suspected sexual abuse of an unemancipated minor.”

A health department statement of deficiencies dated February 1, 2010, shows that the instance of “suspected sexual abuse” involved a 14-year-old girl and a 16-year-old boy, barely meeting the state’s definition of statutory rape. According to Alabama law, minors 15 and younger cannot legally consent to sex; however, “sexual intercourse” with someone under 16 but over 12 is not considered rape as long as the sex partner is less than two years older than the victim.

The state also charged the clinic with failing to develop clinic-specific policies or protocol related to mandatory reporting of suspected child abuse. According to the deficiency reports, during multiple visits by state officials, clinic employees only produced a general policy written by the National Abortion Federation.

Another Alabama clinic, a Planned Parenthood facility in Birmingham, was cited for a statutory rape reporting violation, among others, but did not lose its license, because it subsequently implemented a plan of correction.

But this violation arose from an undercover encounter with anti-choice activists who lied to a clinic staffer and prompted her to acknowledge a fictitious sexual relationship between a 14-year-old girl and a 31-year-old man without reporting it to authorities.

A deficiency report shows this violation was sparked by a conversation surreptitiously recorded by Live Action, best known for conducting sting operations at Planned Parenthood clinics. On July 2, 2008, Live Action President Lila Rose and a colleague visited the Birmingham clinic, where the then-20-year-old Rose posed as a 14-year-old girl who had been impregnated by her 31-year-old boyfriend. Rose told the clinic worker that the sex was consensual and that she wanted the abortion but did not want her parents to know.

According to the transcript from Live Action’s recording, the clinic worker told Rose that as a minor she would not be able to obtain the abortion without the consent of a parent or guardian. When Rose asked if there was a problem with her boyfriend being 31, the clinic worker asked if Rose consented to the sex. She eventually told Rose to call back the next day to talk to a health center manager. When Rose asked if the manager would report this situation to her parents, the clinic worker told her she didn’t think they could because of privacy laws.

In August 2008, after Live Action released this recording on its website, the Alabama health department conducted a “complaint investigation” and cited the clinic with not having developed and complied with the state’s statutory rape reporting laws.

Since 2008, Live Action has advanced its campaign using secret recordings in hypothetical situations in an attempt to prove that Planned Parenthood clinics assist child molesters and sex traffickers by failing to report abortions involving minors. Perhaps most notably, in 2011 Live Action aired a secretly taped video of a New Jersey Planned Parenthood clinic manager talking to actors posing as a pimp and underage prostitutes about how to circumvent reporting requirements. Congressional lawmakers and anti-choice leaders have used this video to advance the narrative that Planned Parenthood colludes with pimps and child molesters.

Anti-Choice Influence on Legislation

Most state laws identify health-care providers as mandatory reporters of statutory rape, but some states have updated reporting laws so that they specifically target reproductive health-care providers.

This year, Arkansas enacted a law based on language drafted by Americans United for Life (AUL), which adds employees and volunteers of “reproductive health facilities” to the state’s list of mandatory reporters of suspected sexual abuse of minors. Last year, Mississippi implemented AUL’s model law, the “Child Protection Act,” which, among other statutory rape reporting requirements, forces abortion clinics to turn over fetal tissue samples to state health officials when an abortion is performed on a minor under 14.

The strategy is not just to shutter abortion clinics, but also to create a false public belief that abortion providers are implicated in child sexual abuse.

In fact, the aforementioned federally funded research on statutory rape laws produced by the Lewin Group was reportedly pushed by conservative congressional members who wanted to check out a charge by anti-choice activists. According to a Guttmacher Institute report from 2004, the Denton, Texas-based anti-choice group Life Dynamics, Inc., had accused family planning providers of actively circumventing state child abuse reporting requirements. Family planning providers, including Planned Parenthood, receive federal funds—thus, the Lewin Group was tasked with researching how these providers handled cases of potential sexual abuse involving minors.

Through site visits, the Lewin Group researchers found that preventing sexually abusive relationships involves partnerships among several government agencies and service providers; they found no evidence that reproductive health facilities were actively circumventing reporting laws.

Indeed, these laws could actually be harming the same young women they purport to protect, according to public health experts. Not only do they place the burden of reporting on people who might not be trained to identify abusive situations, such as clinic volunteers answering the phone, but they could even frighten adolescents away from seeking medical care for fear of being reported to law enforcement.

“If young people fear that they may be reported to the authorities—whether that be child welfare authorities or law enforcement authorities—they may be more reluctant to disclose all of the information to a health-care professional that would be important in enabling that health-care provider to really provide optimal care for them,” said the Center for Adolescent Health & the Law’s Abigail English. “So I see that as the biggest downside of mandatory reporting laws.”