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September|October 2002
Rwandan Ghosts By Victor Peskin
National Sovereignty By Ruti Teitel
Radio Hate By Dina Temple-Raston
Kiss & Tell By Amy Benfer

Kiss & Tell

Prosecutors in California are asking the professionals who treat teenage girls to disregard the confidentiality of patients and help go after statutory rapists.

By Amy Benfer

Tenisha is 17. Her son, James, is 18 months old. James's father, Michael, used to visit him, and he used to give Tenisha money so she wouldn't have to work while she was finishing her senior year of high school. But now he is in jail, serving a 12-month sentence for statutory rape. (These names have been changed, at Tenisha's request.)

She didn't ask anyone to prosecute Michael, who is 23. And she didn't cooperate when the district attorney's office in Riverside, Calif., pressed charges against her son's father. Instead, Tenisha wrote a letter to the judge in Michael's case explaining that she opposed the charges, and that his prison sentence would make life more difficult for her and her child. "I could see if he actually raped me or he wasn't supporting us," Tenisha says. "But it actually made the whole situation worse. Now my son doesn't have a father, and it's put more stress on me because I'm trying to finish school. . . . He took care of us financially."

Although Tenisha says her relationship with Michael was "totally consensual," the law doesn't give her the right to have said yes. When James was conceived, Tenisha was 15 and Michael was 21. The age difference made Michael guilty of a serious crime.

The couple's ages and the six-year gap between them also meant that every health care provider or counselor to whom Tenisha might have gone was legally obligated to turn in Michael for child abuse, even if there was no sign that he was mistreating Tenisha. In policing the relationships between "men" and "girls," California has substituted the judgment of district attorneys and judges for the clinical discretion of doctors, nurses, social workers, and psychiatrists. California's drive to go after statutory rapists has enlisted "the helping professions in prosecuting criminal law," says Judith Levine, author of Harmful to Minors: The Perils of Protecting Children from Sex. "The result is that people don't seek help."

A girl in Tenisha's position can't talk about her relationship to a therapist or a school guidance counselor without risking the prosecution of her partner. She has to hide her child's paternity throughout her pregnancy, and she can't use the father's health insurance to cover the cost of prenatal care. Couples like Tenisha and Michael can't go to couples therapy or to joint counseling about what kind of contraception to use, or show up for prenatal appointments or Lamaze classes together. He can't be in the delivery room or on the birth certificate. She can't apply for welfare benefits or child support.

Tenisha and Michael's relationship ended before James was born. But the breakup wasn't a bad one. "We were still friends—it was cool," Tenisha says. She hid Michael's age and identity all the way through delivery. Then her mother, with whom Tenisha was living, lost her job and had to apply for government aid. To get a welfare check, she had to give the state the names and ages of everyone living in her household, including the contact information for her grandson's father, even though he was not living with them. The welfare office turned the information over to the Riverside district attorney.

The push to prosecute statutory rapists that put Michael in jail was a response in part to the perceived epidemic of fatherless families and welfare dependence in America. The impetus came from a widely reported 1993 study, which found that two-thirds of the babies born to school-age mothers in California had fathers who were 19 or older. Later studies showed that in fact, more than 60 percent of the teen mothers were 18 and 19. And among the 15- to 17-year-old girls, 40 percent had partners who were only one or two years older than they were. Still, the study was hyped as a crisis of older men having babies with young girls, and the welfare reform bill passed by Congress in 1996 instructed the states to "aggressively enforce statutory rape laws." To qualify for welfare grants, each state had to submit a plan describing how they would make education about statutory rape part of programs aimed at reducing teenage pregnancy.

At the time, all 50 states had laws against statutory rape—and rarely enforced them. Many states followed Congress's 1996 instructions by increasing the penalties for sex with a minor and raising the age of consent to 16 (in some places it had been as low as 14). Some states upped the punishment if the sex led to pregnancy: For example, Florida made it a third-degree felony for a man 21 or older to get a girl pregnant who is under the age of 16.

In California, "unlawful sexual intercourse"—statutory rape—is defined as sex between an adult and anyone under the age of 18 if the couple isn't married. (The vast majority of statutory-rape defendants in California are men, but the law has been gender-neutral since 1993, and some women are convicted each year, including those who bear children fathered by teenagers.) If the age difference between the adult and the minor is more than three years, the crime may be a felony; if the difference is less, it's a misdemeanor.

California anticipated the federal push to go after "predatory men" who have sex with underage girls. Under then-governor Pete Wilson, the state started a Statutory Rape Vertical Prosecution (SRVP) project in 1995. In 1996, Wilson signed a bill authorizing civil penalties for statutory rape as well, with graduated fines, based on the age difference between the partners, of up to $25,000 when the defendant is 21 or older and the victim is younger than 16. "Teenage pregnancy involves sexual assault on minors and emotional manipulation of naïve young girls," the former governor said. "We must continue to hold adult men who prey on young girls accountable for their dangerous and unconscionable acts."

Every D.A.'s office can cite the cases that make headlines: the 67-year-old man who was having sex with a 16-year-old girl; the 35-year-old schoolteacher who has the baby of her 17-year-old student. But the majority of convictions each year are men who have just left adolescence themselves. The average age of those convicted of statutory rape in California in 2000-01 was between 20 and 24. And about 40 percent of the perpetrators were younger than 20. While this still leaves room for an age gap—the average victim is 14 or 15—it's hardly the kind of age difference that brings to mind pedophiles waiting in the bushes to pounce. About 40 percent of the defendants in California were less than five years older than their partner, while only about 28 percent were more than 10 years older.

Still, SRVP went on to become one of the most aggressive, well-funded, and—depending on the perspective—admired or reviled efforts to nail statutory rapists in the country. In the project's first year, the state offered $150,000 each to the 16 counties that had the highest rates of unwed mothers with children fathered by adult men. The next year, all 58 counties were eligible for a total of $8.4 million in funds. By 2001, only three small counties declined to apply.

Once counties have funds earmarked to prosecute statutory rape, they have to go out and find statutory rapists. This is where things get messy. It's difficult enough to get victims of forcible rape to testify against the men who hurt them; in statutory rape cases, many of the "victims," like Tenisha, have no intention of turning in their partners. Because district attorneys can't rely on most girls to come forward (some do, usually after the relationship ends), they must come up with other ways to find out about the crime. So they go to the people who talk to and treat sexually active girls—parents, teachers, guidance counselors, social workers, therapists, doctors, and nurses.

From the beginning, the SRVP prosecutors at local D.A.s' offices held teach-ins and training sessions to enlist schools, family support programs, and teen health clinics in referring cases of statutory rape. But at first, many of the professionals at these places said they were legally bound to keep the confidences of the teens who sought their services.

The professionals balked because they viewed their relationships with their patients as "privileged." For the most part, doctors and social workers, like lawyers, aren't supposed to reveal what their patients or clients tell them. (There are exceptions, like a disclosure that could help prevent serious harm to the patient or someone else.) The idea behind the privilege is that patients need to be able to talk in confidence with their doctors and therapists to get the treatment they need.

At the same time, since the 1960s nearly every state has had a law that compels certain health care professionals to make a report to the police or a child protective agency whenever they learn something from a patient that makes them suspect a child is being harmed. These "mandatory reporting" laws were de-signed to fight the secrecy that often surrounds child abuse.

Initially, the laws applied almost exclusively to doctors, and even then a physician had the option to decide whether reporting was consistent with treating the child effectively. But in the past 35 years, mandatory reporting has been expanded to apply to just about every adult in the helping professions—teachers, social workers, therapists, health care workers, emergency room physicians, dental hygienists, and even commercial film development labs. (The labs made headlines in 1990 when art photographer Jock Sturges was turned in to the FBI for suspected child pornography, and they still do whenever a parent gets turned in for taking a picture of a naked baby on a bearskin rug.) In some states, the latest group to be added to the mandatory-reporter list is the clergy. New York and Massachusetts, for example, responded to the recent scandals in the Catholic church by working to restrict the "penitent privilege" that had allowed priests and ministers to keep the confidences of their parishioners and congregants.

In California, however, as in most states, mandatory reporting laws didn't cover the circumstances of statutory rape, since the crime by definition isn't about abuse. As Judith Levine points out, "If the relationship were not consensual, it would be prosecuted under regular old rape laws."

In fact, a California appeals court in 1986 struck down a directive from the state attorney general that required health care workers to file a child-abuse report about anyone under the age of 14 who sought prenatal care, abortion services, or treatment for a sexually transmitted disease. The ruling meant that a health care provider who filed a report based solely on an adolescent's age and sexual activity had violated her legal duty of confidentiality.

To get over that hurdle, the California legislature enacted Assembly Bill 327. The 1997 law classified certain forms of statutory rape as child "sexual assault." In doing so, it required all the teachers, health care providers, and others who are "mandatory reporters" to inform the police of suspected cases of statutory rape. In the same year, the legislature also gave the police permission to see identifying information about those who applied to California's child support enforcement office, which the police sometimes used as a basis for referring cases to the SRVP.

Without Assembly Bill 327, any mandatory reporter had to pass along information if he had reason to think that a teenager or child was having coerced or abusive sex. The bill's effect was to require reports about relationships that would be considered safe and consensual were it not for the age difference between the partners. Federal law, by contrast, requires mandatory reporting of statutory rape only in cases of incest or a caretaker relationship.

Nancy O'Malley is the chief assistant district attorney of Alameda County, which includes the cities of Oakland and Berkeley. She helped found the SRVP project and write Assembly Bill 327. O'Malley remembers that when she testified before the California Senate in favor of the bill, a senator asked her, "Does that mean if I kiss my granddaughter goodbye when I drop her off at school, and a teacher sees it, then I can be reported as a sexual offender?" O'Malley replied, "Well, Senator, if you stick your tongue down her throat, I think so."

O'Malley says the bill was required precisely because mandatory reporters need to keep confidences unless they have a very good ethical and legal reason to break them. The law was designed, she says, to give health care providers a way to bypass confidentiality in certain "egregious situations." So in writing it, O'Malley required reports only about what she saw as the most extreme cases of adults having sex with minors. "We did not want to look like we were trying to regulate the sexuality of teenagers," she says.

As a result, Assembly Bill 327 engages in some painstaking formulations. The cases of statutory rape that must be reported are those in which the minor is younger than 16 and the adult is 21 or older, or the minor is 13 or younger and the sex partner is 14 or older. The law requires a report if a girl is 15 and her partner is 25, or if she is 13 and her partner is 14, but not if she is 14 and her partner is 20, or if she is 11 and her partner is 11. If Tenisha had been 16 instead of 15 when James was conceived, her doctor and guidance counselor wouldn't have been required to report Michael unless there was evidence of abuse, even if he had been 50.

You can see why most health care providers need a chart, and the National Center for Youth Law, based in Oakland, provides one on its website. "I hate these reporting laws," says Janet Shalwitz of the Adolescent Health Care Project in San Francisco. They're "so damn confusing."

When trained professionals have trouble understanding the reporting requirements, you can bet that teenagers looking for reproductive health care are also confused and intimidated. Tenisha says that she and other friends of hers who were involved with older men had only a vague understanding of the law, and so were "very scared" to go to a clinic for health care.

Even if girls get around the reporting requirement by concealing their partner's age, the quality of their care may still be compromised. "The ultimate goal of reproductive health education is to get both partners actively involved in contraception and safe sex," Levine says. "If you have an older guy involved with a younger girl, he's certainly not going to show up at a clinic with her, which will only compound whatever inequality may exist between them."

The mandatory reporting laws have also led to some fairly high-profile embarrassments over the state's handling of shotgun marriages. In Orange County, social workers routinely helped their underage pregnant clients get married to protect the babies from prosecutors. When the social workers in Tulare County used a similar tactic, judges started calling the D.A. to report teen-adult couples who applied for marriage licenses, so that the adult could be arrested before the ceremony.

Rebecca Gudeman, a staff attorney at the National Center for Youth Law, worries that some doctors, therapists, and nurses may be over-reporting—telling the police about sexual relationships between adults and teens that aren't covered by the law—because they don't want to risk the penalties incurred by under-reporting. A mandatory reporter who fails to report her suspicion of abuse or a relationship included in Assembly Bill 327 can get a six-month prison sentence and a $1,000 fine. She can also lose her job or her license to practice.

In the past, mandatory reporting laws were criticized as toothless because few professionals actually got penalized for failing to make a report. But the scrutiny trained on health care professionals may be increasing. This summer, Life Dynamics, a Texas pro-life organization, announced that it had covertly surveyed over 800 clinics across the country by getting a member of the group to pose on the phone as a 13-year-old girl carrying the child of her 22-year-old boyfriend. The organization found that more than 90 percent of the clinics offered to give the "girl" help without reporting her boyfriend. And in Connecticut, two doctors are being prosecuted for failing to report an 11-year-old girl they treated who had the baby of a 75-year-old man she met through the Adopt-a-Grandparent program. If convicted, the physicians could get a $500 fine and jail time.

If assembly bill 327 takes power from doctors and social workers, it gives power to prosecutors. How that power gets used is up to each local D.A. Each county is free to come up with its own criteria for choosing which cases to bring. In Orange County, for example, the D.A.'s office considers the "suspect's and the victim's emotional and physical maturity and sexual experience." In San Diego, a man who gets a girl pregnant is thought to have inflicted "great bodily injury" on her.

About treating pregnancy as an injury, Nancy O'Malley says, "that just offends me beyond words." In Alameda County, where she works, all of the cases involve either coercion or a kind of implied coercion, which O'Malley says is common with large age differences. She often pursues a statutory rape charge because it's easier to prove even though she thinks that a forcible rape charge would be more appropriate. O'Malley has not prosecuted a case without the consent of the teenager in question. "We don't want to be the other rock" in a teenager's life, she says.

It doesn't trouble O'Malley that many health care providers avoid the reporting requirements she helped draft. While it's part of a health care worker's job to ask questions routinely about abuse, Assembly Bill 327 doesn't require a mandatory reporter to ask a sexually active teenager about the age of his or her partner. The standard practice is for health care workers to list for their patients the information they'll have to report if the age is revealed. Spokespeople at clinics throughout California said that they don't ask their patients to volunteer their partners' ages. "What [health care providers] tell me is that they just don't ask certain questions," O'Malley says. "Nor would I want them to."

As O'Malley sees it, her job is to let teenagers know that the law will protect their rights as victims if and when they decide to go after their adult partners. Sometimes, that means acting for a time like a therapist. She tells the story of a case involving a 14-year-old girl who had a child with a 28-year-old man. The couple was living together and the girl wanted to continue the relationship. O'Malley prosecuted, but she and the judge struck a deal with the couple: The girl would stay in school, and her child's father would support her. Each month, the father would show up in court with receipts; the girl would bring her schoolwork.

Both the girl and the judge were African-American, and O'Malley says that the two of them, along with the D.A., struck up a "rapport" and became "good friends," sharing books and exchanging phone calls. Six months into her relationship, the girl got in touch with the prosecutor after her boyfriend "beat the crap out of her"—as it turned out, O'Malley said, he had been hitting her all along. At that point, O'Malley prosecuted the boyfriend with the girl's cooperation.

Other D.A.s also insist that they are not in the business of stopping teens from having sex with their peers, which they refer to as the "18-year-old having sex with his 17-year-old girlfriend." But with over 7,000 referrals each year, some of these kinds of cases inevitably get prosecuted, even in Alameda County. O'Malley remembers going to a community meeting in the East Bay town of Pleasanton, California. She explained that her work was about prosecuting relationships between teenagers and the adults who exploit them, not locking up kids for having sex after the prom. After the meeting, a mother from the town got in touch with her. "You're prosecuting my son right now," she said angrily, claiming that her 18-year-old son was in trouble for having sex with the 17-year-old he'd been dating for two years.

O'Malley went back to her office and looked up the case, and sure enough, the mother was right. "I said, 'What the hell are we thinking? We're not in the business of doing these kinds of cases,'" she remembers. The case was dismissed.

But Brian Kritz, a deputy d.a. in riverside, sees his role quite differently than O'Malley sees hers. Although Kritz likewise insists that he does not prosecute defendants whose ages are "similar" to those of their victims, his office frequently prosecutes men even when their partners vehemently oppose the idea. "The majority of victims are upset. They say, 'I love him'—things like that," says Donna Wirth, Riverside's victim-witness specialist. "At first contact, we just explain this is the law. We say, 'While you may feel you are not a victim, we view you as a victim and we have to proceed as such.'"

Wirth says that "as time goes on" and victims "have less contact with the guy, they begin to realize the [negative] impact . . . he's had on their lives." But whether or not a victim decides to cooperate, her voluntary testimony often isn't needed to win a conviction. Frequently, a pregnancy, photographs, or videos go a long way toward proving the crime. In nearly all cases, the defendant enters a guilty plea before trial.

Kritz says he would "absolutely" prosecute a father who was living with his partner and their child, and that he would ask for prison time. "I don't care if they live together. I don't care if they think they have a great relationship," he says. "If the relationship is age-inappropriate, then I will prosecute."

It was Kritz's office that prosecuted Michael and put me in touch with Tenisha. "It's tough for her," says Donna Wirth, to whom Tenisha has complained that staying in school is harder now that she can't rely on Michael's help.

But Kritz says that even if the immediate impact of having a father behind bars makes it more difficult for the family, he thinks the long-term benefits of prosecuting often outweigh the harm. "My feeling is, Don't do the crime if you can't do the time," he says. "I'm proud of what we do here."

Tenisha hopes that when Michael gets out of prison next year, he'll again support their son financially. But she is worried that because of the separation, "he may not be there for James emotionally as much." The toddler often cries for his father. While Michael is in jail, Tenisha is forbidden to visit him, and the jail has refused to pass along her letters or pictures of his son. James could visit his father if another adult took him, but the boy would be separated from Michael by a barrier. "I think it would be hard for him not to be able to touch his father," Tenisha says. "Also I hardly think that jail is a great environment for a kid."

Amy Benfer is a writer in New York. She is a former Salon editor, and writes regularly for Salon, San Francisco Magazine, and The New York Times Book Review.

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