Journal of Law & Policy, Vol. 20, p. 63, 2012
55 Pages Posted: 19 Jan 2012 Last revised: 9 Mar 2012
Date Written: August 1, 2011
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.
Keywords: Consent, Adolescents, Neuroscience, Sexual Harassment
Suggested Citation: Suggested Citation
Drobac, Jennifer Ann, A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to 'The Age of Consent' (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. Available at SSRN: https://ssrn.com/abstract=1987797