Abandoning Teenage Consent for Legal Assent: Harmonizing Developmental Sciences and the Law
Jennifer Ann Drobac
Indiana University Robert H. McKinney School of Law
May 23, 2011
Gruter Institute Squaw Valley Conference: Law, Institutions & Human Behavior, 2011
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.”
Date posted: May 24, 2011