Battle of attorneys clouds sex crime issue

A document filed by Attorney General Phill Kline says 12 girls who received abortions from George Tiller were ages 10 to 16 -- raising the question of whether possible sex crimes related to the pregnancies are being investigated.

Still, the issue of whether the pregnancies resulted from sex crimes has received little attention over the past week. Instead, it was dominated by the legal battle over whether Kline had authority to file charges against Tiller over abortions Tiller performed.

Neither Kline nor his staff have responded to questions The Eagle posed about possible sex crimes related to the pregnancies.

District Attorney Nola Foulston said Friday she will be looking into whether any of the pregnancies involved in the abortions stemmed from sex crimes in Sedgwick County. So far, Foulston said, Kline hasn't notified her office of any such crimes.

Foulston said she expects Kline's successor, Paul Morrison, to inspect files from Kline's investigation of abortions performed by Tiller and forward any evidence to her that deals with possible sex crimes in Sedgwick County.

Morrison, a longtime Johnson County district attorney who defeated Kline in the November election, takes office Jan. 8.

"I know Paul," Foulston said. "He's going to go through it with a fine-tooth comb."

If the abortions involved sex crimes that happened outside Sedgwick County or in another state, she said, she would expect Morrison to contact authorities in those jurisdictions.

Morrison spokeswoman Ashley Anstaett said she couldn't comment on the specifics of Kline's investigation of Tiller. Repeating a previous statement, she said Morrison will evaluate the case when he takes office "and make a decision based on the evidence, the law and his proven judgment as a criminal prosecutor."

Foulston and Kline have battled publicly during the past week over whether he had authority to file misdemeanor charges accusing Tiller of conducting 15 illegal late-term abortions in 2003 and failing to report a proper basis for the procedures.

Sedgwick County District Judge Paul Clark found Thursday that Foulston had legal authority to dismiss the charges Kline filed.

Tiller's attorney, Dan Monnat, said Tiller is "an innocent man unfairly maligned by Kline."

Youngest patient was 10

Kline's document accusing Tiller, filed in Sedgwick County District Court on Dec. 21, does not give names of the 15 patients or divulge where they became pregnant, or the circumstances, but provides their ages at the time of the abortions.

The youngest abortion patient was 10. One was 13, two were 14, seven were 15 and one was 16. The other three were 18, 19 and 22.

The patients were 25 to 31 weeks pregnant, so it's not clear how old they were at the time they became pregnant.

Whether patients were sex-crime victims would depend on their age and the circumstances of how they became pregnant.

Kansas law holds that a child under the age of 16 legally can't have sex, even if it is voluntary, said Kim Parker, the chief deputy district attorney.

It would be rape, for example, if the intercourse occurred when the child was under 14, Foulston said. It would be aggravated indecent liberties if a child was under 16.

Other sex offenses, such as incest or sexual exploitation of a child, could apply if the person was under 18.

Factors in prosecution

Prosecutors are more likely to file charges in cases where the male and female are of significantly different ages or where there is evidence of coercion, force or other related crimes.

Underage pregnancies are supposed to be reported by a list of people including teachers, school administrators, therapists, doctors, nurses and social workers. Their role is important because families sometimes choose not to report those pregnancies.

"We want to be informed of any suspected crimes as quickly as possible to prevent additional victimization," Foulston said.

A law regulating abortions says that any physician who performs an abortion on a girl younger than 14 must preserve fetal tissue so it can be submitted to a laboratory designated by the Kansas Bureau of Investigation.

DNA from a tissue sample can be key to a prosecution.

"I have had cases where an out-of-state child came for an abortion, DNA was taken, and it was the father who raped the child," Foulston said.

Tiller defended

Monnat, one of Tiller's attorneys, said in a statement Friday: "Dr. Tiller has spent at least the last two years fighting to protect women's privacy in these and other health care records."

He said Tiller has "complied with the letter of the laws governing his medical practice... has operated his practice under a microscope of scrutiny from the public and regulatory authorities, reported what the law requires him to report and voluntarily cooperated with proper law enforcement authorities."

Past cases referred

During his time in office, Kline has repeatedly voiced a commitment to protecting children from abuse, especially sex crimes.

In a statement Wednesday, he said: "My office has now referred over 25 cases of child rape to local authorities from abortion records for further investigation and/or prosecution."

The statement didn't say when those referrals occurred or where they were directed. Neither Kline nor his staff could be reached for comment.

Foulston said the attorney general is required by law to refer the cases. "We have received his referrals, and we have followed up on each of the cases brought to our attention" in the past, she said.

"The majority of the cases he referred to our jurisdiction had already been investigated, and most had already been through the court system by the time we received the AG's list."