Kansas Attorney General Opinion 1992-048

ROBERT T. STEPHAN
ATTORNEY GENERAL April 6, 1992
ATTORNEY GENERAL OPINION NO. 92- 48
Bill McCormick
Director of Federal and State Affairs
Governor's Office
2nd Floor, State Capitol
Topeka, Kansas 66612
Re: Minors--Kansas Code for Care of Children; Matters
Prior to Filing Petition-- Reporting of Certain
Abuse or Neglect of Child; Pregnancy
Synopsis: 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. While the pregnancy itself is
not an injury, it certainly puts one on notice that
sexual abuse (as statutorily defined) probably has
occurred, and requires those persons listed in
K.S.A. 1991 Supp. 38-1522(a) to investigate further
whether the child has suffered injury, either
physical or emotional. 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. Cited herein: K.S.A.
1991 Supp. 21-3503; K.S.A. 38-1501; K.S.A. 1991
Supp. 38 - 1502; K.S.A. 38-1521; K.S.A. 1991 Supp.
38 - 1522; 38 - 1523; K.S.A. 38 - 1525; 38-1526; K.S.A.
1991 Supp. 38-1583; 40-3103; 44-508; K.S.A. 1980
Supp. 38-717; 38-718; 38-721; 38-721c; 38-721d; L.
1975, ch.231, § 1.

Dear Mr. McCormick:
As counsel for Governor Finney, you request our opinion
regarding the child abuse reporting requirement of K.S.A. 1991
Supp. 38-1522(a). Specifically your question is this:
"Since child abuse includes by definition
the felony crime of indecent liberties,
does this mean that all cases of pregnancy
of unmarried children under sixteen years
of age involve suspected injury or abuse
as used in the statute and therefore must
be reported?"
K.S.A. 1991 Supp. 38-1522 provides in part:
"(a) When any of the following persons
has reason to suspect that a child has
been injured as a result of physical,
mental or emotional abuse or neglect or
sexual abuse, the person shall report
the matter promptly as provided in
subsection (c) or (e): . . . Every
written report shall contain, if known,
. . . the nature and extent of the child's
injury (including any evidence of previous
injuries) and any other information that
the maker of the report believes might be
helpful in establishing the cause of the
injuries and the identity of the persons
responsible for the injuries.
"(d) Any person required by this section
to report an injury to a child and who has
reasonable cause to suspect that a child
died from injuries resulting from
physical, mental or emotional abuse or
neglect or sexual abuse shall notify the
coroner or appropriate law enforcement
agency of that suspicion.
"(f) Willful and knowing failure to make
a report required by this section is a

class B misdemeanor. . • • "(Emphasis
added).
The term "sexual abuse" is defined in K.S.A. 1991 Supp.
38-1502(c) as "any act committed with a child which is
described in article 35, chapter 21 of the Kansas Statutes
Annotated. . . ." Article 35, chapter 21 of the Kansas
Statutes Annotated defines "indecent liberties with a child"
to include sexual intercourse with a child who is under 16
years of age when that child is not married to the accused.
K.S.A. 1991 Supp. 21-3503(1)(a). Clearly, when an unmarried
child under 16 years of age is pregnant, sexual abuse (as
statutorily defined) has occurred, absent artificial
insemination. However, K.S.A. 1991 Supp. 38-1522(a), a penal
statute which must be strictly construed against the state,
does not require reporting of all suspected child abuse; it
requires reporting in situations where there is "reason to
suspect the child has been injured" as a result of abuse.
(Emphasis added). The question, therefore, is whether the
mere fact of pregnancy of an unmarried minor is sufficient
reason to suspect that the child has been injured.
The term "injured" is not defined in the code for care of
children, K.S.A. 38-1501 et seq., although it is used in
several sections of the code. K.S.A. 1991 Supp. 38-1502(b)
defines "physical, mental or emotional abuse or neglect" as
"the infliction of physical, mental or emotional injury or the
causing of a deterioration of a child and may include, but
shall not be limited to, failure to maintain reasonable care
and treatment, negligent treatment or maltreatment or
exploiting a child to the extent that the child's health or
emotional well-being is endangered. . . ." This definition
recognizes that not all injuries are physical wounds. K.S.A.
38-1521 establishes the policy of the state to provide for the
protection of children by encouraging the reporting of
suspected child abuse. That statute requires the secretary of
the department of social and rehabilitation services (SRS),
when funds are available for such purpose, to conduct
educational programs for persons required to report, which
programs "shall include courses which encourage the reporting
of cases of children suspected of having been injured as a
result of physical, mental or emotional abuse or neglect or
sexual abuse [and] an analysis of . . . the methods of
diagnosing injuries inflicted as a result of abuse. . . ." We
are informed that past programs have covered the gamut of
potential injuries, but have not established pregnancy as a
per se injury. K.S.A. 1991 Supp. 38-1523(b) requires joint
investigations by SRS and law enforcement "[w]hen a report

of child abuse or neglect indicates (1) that there is serious
physical injury to or serious deterioration or sexual abuse of
the child and (2) that action may be required to protect the
child. . . ." This statute infers a distinction between
physical injury and sexual abuse; sexual abuse can occur
without physical "injury." K.S.A. 38-1525 provides
protection for employees who report "injury inflicted upon a
child which was suspected by the employee of having resulted
from the physical, mental or emotional abuse or neglect or
sexual abuse of the child." Substantially the same language
is used in K.S.A. 38-1526 providing certain immunity to
persons making reports. Again, it is the injury which must be
reported, not merely suspicions of abuse. Finally, among the
items listed for courts to consider when determining whether
to terminate parental rights is any "unexplained injury or
death of a sibling. . . ." K.S.A. 1991 Supp. 38-1583(b)(6).
None of these statutes are determinative of whether pregnancy
of an unmarried minor necessarily constitutes an injury.
The legislative history of the code for care of children in
general, and K.S.A. 1991 Supp. 38-1522(a) in particular, does
not offer much assistance in determining the legislature's
intended meaning for the term "injured," or whether pregnancy
of an unmarried minor would be considered an "injury." The
pertinent provisions of K.S.A. 1991 Supp. 38 - 1522, quoted
above, have not been amended since enactment of the code in
1982. The code for care of children is essentially part of a
recodification of the juvenile code, separating the sections
dealing with criminal offenses from those dealing with status
offenses. See Kansas Report on Legislative Interim Studies,
Proposal No. 17, December, 1981. The recodification was
accomplished through the efforts of the juvenile code advisory
committee of the Kansas judicial council. See Minutes,
Senate Committee on Judiciary, Jan. 25, 1982; Minutes, House
Committee on Judiciary, March 16, 1982. Originally, the
recommendation of the judicial council advisory committee
omitted the term "sexual abuse," and its definition, from what
is now K.S.A. 1991 Supp. 38-1502 and 38-1522. Judicial
Council Bulletin, June 1981. The comment to section 1502
read, "it is the opinion of the Committee that sexual abuse is
included in 'physical, mental or emotional abuse.'" Id.
These items were amended into the proposed legislation during
a subsequent meeting of the committee without comment.
Minutes, Judicial Council Juvenile Code Advisory Committee, p.
4, July 14, 15, 16, 1981. At that same meeting, the committee
altered section 1522 [now 38-1522(d)] to the current language
"injuries resulting from." Previously the language used was
"injuries inflicted as a result." Id. at 6. The comments

to sections 1522, 1521, 1523, 1524 (now K.S.A. 38-1525) and
1525 (now K.S.A. 38-1526) indicate that the language for these
sections was derived from K.S.A. 1980 Supp. 38-717, 38-721c,
38-721, 38-721d and 38-718 respectively. See also,
Minutes, House Committee on Judiciary, attachment B, pp. 5,6
(March 16,1982). The only significant amendment to these
statutes occurred in 1975 when K.S.A. 38-717 was amended to
delete the adjective "serious" from the description of
injuries required to be reported. L. 1975, ch. 231, § 1.
The reason given for the 1975 amendments was that they were
"needed to meet federal regulations for Title IV-A and
IV-B monies." Minutes, Senate Committee on Public Health
and Welfare, March 18, 1975. This is believed to have been
part of the movement toward recognizing that minor injuries
can be indications of abuse situations, and that the state
should not wait until the injuries become serious before
determining the necessity for intervention.
While the code and its history do not shed much light on
whether the term "injured" encompasses the condition of being
pregnant, it does require liberal construction "to the end
that each child within its provisions shall receive the care,
custody, guidance, control and discipline, . . . as will best
serve the child's welfare and the best interests of the
state." K.S.A. 38-1501. Other Kansas statutes define
"injury" narrowly to include only physical ailments. K.S.A.
1991 Supp. 40-3103(i); 44-508(e). The rule of construction
cited above and the usage of the term throughout the code,
however, dictate a broader reading in this case. "Injure" is
commonly defined as "[t]o cause harm or damage to; hurt." The
American Heritage Dictionary 676 (College Ed. 1975). See
also In re Norwood, 234 N.W.2d 601, 603 (Neb. 1975)
(neglect held to constitute an injury to child's welfare and
rights); St. Clair v. Douvas, 158 N.E.2d 642, 646 (Ill.
1959) (term "injury" as used in workers' compensation act
broader than objective physical break or wound to the body;
includes also the consequences therefrom such as mental
ailments or nervous conditions). Thus, in our opinion,
reportable injuries include emotional as well as physical
harm. A pregnant, unmarried minor may very 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. It has been
held that pregnancy is not itself an injury but a natural
condition. Carter v. Howard, 86 P.2d 451, 455 (Or. 1939).
This is consistent with Kansas case law which refuses to
recognize at least a compensable injury for the birth of a

normal, healthy child. Byrd v. Wesley MedicalCenter,
237 Kan. 215 (1985); Johnson v. Elkins, 241 Kan. 407, 411
(1987).
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.
Very truly yours,
Robert T. Stephan
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
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