Browsing by Author "Drobac, Jennifer"

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    A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to "The Age of Consent"
    (2011) Drobac, Jennifer
    This Article explores whether minors have the developmental maturity consistent with an assignment of full adult legal capacity. It also questions whether adolescent "consent"' should insulate alleged tortfeasors from liability. Are we, as a society, taking a Bee Line in the wrong direction? This Article answers that question in the affirmative. It proposes that New York and sister states adopt a new stance in response to adolescent consent to sex with an adult. In particular, it offers the notion of legal assent, a mechanism that presumes no threshold legal capacity but affords teenagers autonomous decision making authority and protection following misguided decisions. 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 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.
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    "Developing Capacity": Adolescent "Consent" at Work, at Law, and in the Sciences of the Mind
    (2006) Drobac, Jennifer
    No national consensus exists concerning adolescent capacity to consent to sex. The law gives differing legal significance to adolescent "consent" to teen-adult sex depending upon a variety of factors. In response to an increase in teen sexual harassment cases, this Article examines three subject areas that should inform the debate over the actual meaning of adolescent consent: adolescent development, adolescent sexuality, and child/adolescent sexual abuse. First, new neuroscientific and psychosocial science data suggest that adolescent physical and psychosocial development continue into the third decade of life. Studies reveal that adolescents' activities influence their physical brain development and growth. In other words, adolescents "hard- wire" their experiences into their brains. Second, statistics regarding adolescent sexuality indicate that teens are having sex that is not always completely voluntary. Moreover, parents are often unaware that their children are having sex. Finally, evidence demonstrates that child sexual abuse can permanently and physically disable youth. This Article suggests that the new scientific and statistical evidence should prompt law reform pertaining to teen capacity and consent. It concludes that while adolescents need to exercise their decision-making skills as they mature, they still need protection from adult sexual predators. As the Supreme Court's recent decision in Roper v. Simmons suggests, we should not presume full capacity where science indicates adolescents are immature and still developing capacity. This Article recommends, in particular, that sexual harassment law should be revised to make teen consent to workplace sex with an adult supervisor voidable by the minor. Courts should find teen-adult sex unwelcome as a matter of law, when the minor alleges sexual harassment. This Article recommends a strict liability civil response to teen sexual harassment, whether or not the teenager once consented to sex with the adult supervisor.
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    Exposing the Myth of Consent
    (2015) Drobac, Jennifer; Goodenough, Oliver R.
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    For the Sake of the Children: Court Consideration of Religion in Child Custody Cases
    (1998) Drobac, Jennifer
    Concerned that many courts routinely examine parents' religious beliefs and practices in child custody cases-despite First Amendment protections- Jennifer Drobac reviews pertinent federal constitutional law and recently published state custody cases. She finds that nearly sixty percent of the cases employ standards that violate the Establishment, Free Exercise, Supremacy, and Equal Protection Clauses. To protect religious freedoms while preserving the best interests of children, Drobac proposes the application of a procedure she terms "NOAH, " the New Osier Actual Harm test, under which courts could not consider religion during the initial custody determination. Only later, in a bifurcated proceeding, could the court modify its original determination using the least restrictive means available, if it first found that a parent's religious beliefs or practices actually had harmed or would harm a child. Drobac concludes that NOAH would minimize constitutional violations, prevent religious bias from corrupting custody determinations, and serve the best interests of children by ensuring that the most qualified caregiver receives custody, regardless of religion.
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    The Oncale Opinion: a Pansexual Response
    (1999) Drobac, Jennifer
    In now-familiar language, [Title VII]forbids an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's... sex."
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    Pansexuality and the Law
    (1999) Drobac, Jennifer
    This essay introduces the term pansexuality and suggests briefly that pansexuality, as a concept, simplifies communication and provides a useful tool for understanding that sexuality includes more than just three subcategories: heterosexuality, homosexual- ity, and bisexuality This essay also proposes that a pansexual perspective deconstructs the stereotypical interrelation between biological sex and sexual behavior. Specifically, pansexuality demonstrates that biological sex does not correlate strictly with particular sexual behaviors. For example, "real" men are not necessarily heterosexual and may enjoy being pursued; some "real" women may pursue both men and women and enjoy sexually dominating them. By adding another conceptual term to our lexicon, we could improve the way we analyze and discuss issues involving gender, sexuality, and the law.
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    The Perfect Jointure: Its Formulation After the Statute of Uses
    (1988) Drobac, Jennifer
    In any era, widowhood has always been a disturbing prospect for a woman. For English women of the sixteenth and seventeenth-centuries it torbode a nightmare. They had no social security, retirement funds or substantial life insurance settlements to meet their financial requirements. There was some provision at Common Law for the financial support of widows but it was often times meagre comfort. Recognizing the failings of the Common Law, husbands turned to the creation of jointures in an attempt to provide for their widows. This paper examines the development of English jointures through three phases. First, it analyzes the 1536 Statute of Uses, 27 Henry VIII C. 10, and how it affected jointure formulation. Second, it appraises the impact of important cases relating to the formulation of an effective jointure. Finally, it reviews three legal treatises of historical significance, re-evaluating in particular the First Institute in which Sir Edward Coke asserted that his outline laid the foundation for a "perfect" jointure.
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    Reflections from Jennifer Drobac
    (2009) Drobac, Jennifer