"Developing Capacity": Adolescent "Consent" at Work, at Law, and in the Sciences of the Mind

Abstract

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.