A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to 'The Age of Consent'
Jennifer Ann Drobac
Indiana University Robert H. McKinney School of Law
August 1, 2011
Journal of Law & Policy, Vol. 20, p. 63, 2012
Indiana University Robert H. McKinney School of Law Research Paper No. 2012-02
This article updates prior work on the sexual harassment of juveniles to mark that the trend, in New York and across the nation, is to treat adolescent acquiescence, in the context of civil sexual abuse allegations, like adult consent. Incorporating Supreme Court adoption of the neuroscience and psychosocial studies from Graham v. Florida, 130 S.Ct. 2011 (2010), the article takes a fresh look at the trend to recommend a new approach to adolescent “consent.” It recommends affording adolescents the right to give legal assent when it serves their best interests.
Part I of this Article briefly reviews the neuroscience and psychosocial evidence regarding adolescent development to maturity. This research is new and reported conclusions vary, but a snapshot review of current understanding helps guide an evaluation of New York law first formulated in 1933. Part I concludes that adolescents are not younger, smaller adults but are fundamentally different in the ways they think and behave. Part II explores legal guidance concerning consent, assent, and juvenile incapacity. It highlights that legal authority cautions against attributing full legal capacity to minors — whether or not one affords them decision making autonomy. Part III reviews recent cases from New York to show how New York courts treat adolescent consent to unlawful sex with an adult inconsistently. It also notes several other cases from across the nation that replicate the New York inconsistencies. This Article concludes in Part IV by recommending a new approach to adolescent consent to sex with an adult-legal assent.
Number of Pages in PDF File: 55
Keywords: Consent, Adolescents, Neuroscience, Sexual Harassment
Date posted: January 19, 2012 ; Last revised: March 9, 2012