A Bee Line in the Wrong Direction: Science, Teenagers, and the Sting to "The Age of Consent"

Abstract

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.