Abandoning Teenage Consent for Legal Assent: Harmonizing Developmental Sciences and the Law

Posted: 24 May 2011  

Jennifer Ann Drobac

Indiana University Robert H. McKinney School of Law

Date Written: May 23, 2011

Abstract

Comparisons of recent California, New York, and Illinois civil law precedent concerning the juvenile “age of consent” for sexual activity reveal that states treat adolescent “consent” erratically. The new neuroscience and psychosocial evidence of adolescent development adopted by the U.S. Supreme Court in Graham v. Florida supports the movement to treat adolescents different from more developmentally mature adults. Moreover, adult prejudice and judicial bias against sexually active teenagers places teenagers at risk for sexual harassment and predation.

Conflicts between law and science, as well as between state civil and criminal law, mandate a revision of legal approaches to teenage “consent,” and perhaps not just with respect to consent to sexual activity. Drawing wisdom from recent scientific discoveries and traditional legal guidance, this presentation introduces a new mechanism to replace adolescent “consent,” legal assent. Legal assent presumes no threshold legal capacity but affords teenagers autonomous decision-making authority, as well as protection following misguided decisions. It highlights that recognition of legal assent might reduce legal bias, better protect teenagers, and encourage their responsible decision-making as they are “developing capacity.”

Suggested Citation

Drobac, Jennifer Ann, Abandoning Teenage Consent for Legal Assent: Harmonizing Developmental Sciences and the Law (May 23, 2011). Gruter Institute Squaw Valley Conference: Law, Institutions & Human Behavior, 2011. Available at SSRN: https://ssrn.com/abstract=1850765

Jennifer Ann Drobac (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4777 (Phone)
317-278-7563 (Fax)

HOME PAGE: http://www.indylaw.indiana.edu/people/profile.cfm?EmpNum=41

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