Attorney Gloria Allred (R) looks on as Beverly Young Nelson tears up during a press conference on November 13. Nelson alleges that Roy Moore sexually assaulted her when she was a minor. Eduardo Munoz Alvarez/AFP/Getty Images
Every year thousands of adults sexually exploit teenagers — though rarely do these predators receive the notoriety that Roy Moore has achieved. Given the prevalence of the problem, it’s important to recognize how and why teenagers are particularly vulnerable to adult sexual predation, by drawing on our current understanding of psychology.
We can also use that understanding to improve our laws protecting teenagers from sexual abuse. In particular, I think sexual consent laws would benefit from a concept used in contract law involving underage consumers and citizens. (Moore has denied the accusation that he had sex with a 14-year-old, decades ago, while in his 30s, but said he “didn’t dispute” possibly having dated 16-year-olds.)
Consent laws, I argue, should allow people within a certain age range (say, 16 to 21) to offer “assent” to sex with a significantly older person — but permit them to revoke that assent at any time. “Assent” is a weaker form of agreement, legally speaking, than “consent.”
Such a system would put an extra onus on adults to make sure that they are not taking advantage of a younger person, strengthening the disincentive to troll malls and sweet-talk people just above the current age of consent.
There is a scientific argument for modifying consent laws. Though laws placing minimum ages on contracts, and sexual consent, were created before we knew that science, lawmakers intuitively (if inconsistently) recognized that teenagers do not make decisions in the same way adults do.
We now know that the teenage brain does not finish maturing until sometime in the mid-20s. Neuroscience and psychosocial evidence confirms that teens can make cognitively rational choices in “cool” situations — that is, when they have access to information, face little pressure, and possibly have adult guidance. Teens make decisions differently in “hot” situations that involve peer pressure, new experiences, and no time for reflection.
The first thing we can say, therefore, is that age-of-consent laws that draw a bright line of sexual maturity at 18 or younger fail to consider the scientific data.
To be sure, levels of maturity vary by individual; setting one age as the advent of maturity is always going to be a gross proxy. That imprecision helps explain the wide variety of minimum ages reflected in American law. In the political realm, the age of majority was lowered with the 26th Amendment, which gave 18-year-olds the right to vote, yet still prevents most teens from voting. The law also limits, to different degrees, teens’ ability to serve on a jury, marry, drive without parental permission, or file a lawsuit.
Statutory rape is a crime defined at the state level, so the age of sexual consent varies from state to state. And it can even vary within a state, depending on the conduct alleged (oral sex versus intercourse, for instance) and whether the adult consort occupies a position of authority (if he or she is a teacher, for instance).
The age of consent has been going up since the dark ages. Today, most but not all states set it at 16. Still, the Seventh Circuit Court of Appeals boasts three different ages of consent — Indiana: 16, Illinois: 17, and Wisconsin: 18. I defy anyone to tell me that teens in Indiana are more mature than those in Wisconsin. Maybe Indiana legislators simply don’t believe in the science of adolescent development?
The science is clear that in situations involving passion and pressure, teens are more likely to choose short-term rewards and discount long-term consequences. But they may lack important factual and contextual information, too. They may not know that if they consent to sex with their boss at an after-school job, they cannot sue under state and federal sex discrimination laws for harassment.
We can turn to contract law for some better ideas about handling consent. Contract law understands that children possess not “legal capacity” — on which solid contracts depend — but “developing capacity.” Contract law therefore makes consent by a minor unilaterally voidable. For example, if a teen (or a child, for that matter) buys a car from a dealer and then crashes it, she can often void the contract and refuse to continue making car payments. (Some states might require that she return the vehicle, but a totaled car is of little use to the seller.)
For this reason, most dealers will require adult co-signers on major purchases and contracts involving minors. Note that commerce does not come to a grinding halt because of this rule. Minors still make contracts every day with mall retailers and companies like Apple, which sells iTunes music to millions of teenagers — even though minors (children under 18) can void those purchases. But every such purchase carries a risk for the company.
The assumption behind most of these voidable contracts is that parents would agree to the vast majority of the purchases — and companies will take a risk in the few cases where that assumption is wrong. Adults who have sex with minors are not interested in parental permission, however (to say the least). They are grooming these teenagers, enticing them with attention, favors, and presents.
Therefore, drawing on contract law — but not mirroring it exactly — I propose that the law should credit adolescent consent not as legal consent but as legal assent. Legal assent requires no additional parental consent or permission. Yet unlike legal consent, it carries no associated threshold level of legal capacity. That means the granting of assent cannot be used against the teen to insist that she knew what she was doing and should be held legally responsible.
Legal assent remains agnostic on the existence of any given juvenile’s maturity. Yet like consent by a minor under contract law, legal assent would be voidable by the minor.
Here’s how I imagine it working. Suppose Jane Doe (16) gives legal assent to sex with Troy (30). That assent is legally binding, but would be unilaterally revocable. If the minor concludes that the sex was exploitative, before she reaches 18 (or 19 or 20), she could void her assent. (Parents could not void a minor’s assent for her, under this system.)
The voiding or revocation would not take place automatically, however. A court would review an adolescent’s revocation of assent and make a “best interests” analysis in deciding whether to validate the revocation. (Judges consider the “best interests” of minors regularly in divorce custody cases, for instance.) Most if not all courts will conclude that an adult having sex with a minor is not in a minor’s best interests; therefore, the court is likely to find that Doe may revoke her assent to sex with Troy. Doe’s parents may then sue Troy for Doe’s injuries (since she does not have the legal capacity to sue in her own name).
If a minor successfully voids her assent, a court will not admit it into evidence at the trial on the merits or permit further discovery on the matter. This bar is important. Currently, lawyers of sexual predators can use teen consent — even when it occurs below the age of legality — as a defense in some states to avoid liability for damages. They also try to make teens look like promiscuous provocateurs by offering the teen’s prior consent to sway public opinion and discredit the youth; and jurors may award lower damages in such cases.
(One 15-year-old California teen who consented to sex with her married teacher was characterized as a Jezebel by his supporters, although the age of consent in California is 18. Even if communities persist in condemning teens, at least the judges can exclude evidence of assent at trial to try to protect those teenagers. California changed its law in 2016 to exclude a minor’s consent at trial.)
A criminal prosecutor could prosecute an adult who has sex with an assenting minor once assent is withdrawn, because the legal assent operates only for the benefit of the minor. The general point here is that the adult consort in this kind of situation can choose to take the risk of having sex with an older teenager, but the risk would be massively heightened.
Age-of-consent law is complex, and full of pitfalls. If the state sets the age too high, it risks condemning Romeo-and-Juliet relationships (or Romeo-and-Romeo). Those cases may require adult intervention, but should typically not be criminalized. Indeed, this is why most statutory rape laws require an age difference between the child and the consort — typically in the range of two to five years. (Sadly, some teenage sexual predators exist and they should be isolated to protect others. But those cases are far from the norm.)
Given the neuroscience and psychosocial evidence of adolescent development, I believe society sets the age of consent too low. That said, I also know that teen brains need decision-making experiences for the proper development of synaptic neuronal connections. If we deny teenagers decision-making opportunities, we risk retarding their growth and maturation. Similarly, if we tell teens to “just say no” to sex, we deny a normal part of their development and sexual exploration that must occur in an age-appropriate way.
Let’s be clear: No adult needs to have sex with a teenager. In this context, let the adults just say no. Let’s give adults a reason to think twice — or three or four times — before having sex with even a “willing” person of 18 or 19, let alone 16. Introduce the idea of voidable assent and behavior like Moore’s apparent seduction of teenage girls becomes much less likely.
Jennifer A. Drobac teaches sexual harassment law, contracts and sales, and criminal law at Indiana University, in the Robert H. McKinney School of Law. She is the author of Sexual Exploitation of Teenagers: Adolescent Development, Discrimination & Consent Law.
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