Abstract
In Sexual Exploitation of Teenagers: Adolescent Development, Discrimination, and Consent Law, Jennifer Ann Drobac examines legal issues associated with sexual harassment and exploitation of maturing teenagers by adults in the United States. After providing readers, in chapter 1, with an overview of key terms, such as consent, acquiescence, and assent, Drobac explores how and why the US legal system treats adolescents’ consent to sex with adults inconsistently and then provides possible solutions.
In chapter 2, the author reveals the high risk of sexual harassment of adolescents in their daily lives. While acknowledging peer sexual harassment as a serious problem, the author focuses on the sexual exploitation of adolescents by predatory adults. She explains that the ‘legal definition of sexual harassment and exploitation’ (p.16) requires the behavior to be ‘sexual’ and ‘unwelcome’. The author contends that this definition is too narrow by pointing out that the ‘sexual’ standard ignores nonsexual forms of abuse (e.g. ‘gender animosity may motivate some forms of hostile, sex-based harassment’) and the ‘unwelcome’ standard presumes adolescents have the capacity to welcome sex with adults, which is not actually the case. Next, Drobac shows that adolescents are ‘potentially at risk (wherever they go)’ (p.42) and in some contexts, they encounter more sexual harassment than adults do. The author also expresses concern that the sexual or sexist messages embodied in public places, such as in commercial advertisements at the mall, television programs, and music lyrics, might contribute to the enculturation that certain sexual harassment is acceptable and tolerable, which is averse to protecting adolescents from sexual harassment and exploitation.
Drobac then discusses the unique characteristics of adolescents’ neurobiological, cognitive, emotional and psychosocial development, and indicates that ‘adolescents experience significant changes not only during their teenage years, but also into their early twenties and beyond’ (p.52). Thus, the law should not expect adolescents to act in the same way as adults. These unique traits, the author argues, plus the power, age and maturity disparities, render adolescents lacking in the capacity to consent to sex with their workplace supervisors or adult teachers, which implies that such sexual conduct between adolescents and adults should be labeled as sexual abuse.
In subsequent chapters, Drobac analyses several cases to evaluate the legal treatment of adolescents and adult sexual predators in US criminal law. Given that adolescents under a specific age limit according to the state law are usually considered lacking in the legal capacity to consent to sexual intercourse, defendants should in principle not be able to use consent as a defense. But the chastity defense used to play a role in history (Hernandez v. State). Moreover, the author discusses the civil law response to adolescents’ consent and highlights cases of adolescents suffering sexual exploitation in which the adolescent’s consent was considered relevant, thereby preventing the adolescent from succeeding in a civil case involving damage claims. Several doctrines, including the ‘rule of sevens’, ‘doctrine of misprision’ and ‘writ of seduction’, contribute to the differences between criminal and civil responses. Moreover, Drobac indicates that even within the civil law system, there exists inconsistency in the legal treatment of adolescents’ consent. The author also analyzes California criminal and civil law regarding sexual abuse of minors in Chapter 8 to further illustrate the inconsistent legal treatment of adolescent consent. For instance, in People v. Tobias, the court’s finding that minors may ‘knowingly and voluntarily’ participate in sex was interpreted as empowering adolescents with the legal capacity to consent to sex with adults. Drobac, however, argues that this decision disadvantages adolescent victims of child sexual abuse because it confuses actual consent with legal consent. What is worse, this ruling was extended to civil law through the Donaldson v. Dep’t of Real Estate case and makes adolescent victims unlikely to win in civil court regarding their damage claims. Due to the precedential influence of case law in the US, these two cases put adolescents in a disadvantageous position.
In Chapter 6, Drobac introduces three dominant perspectives concerning the regulation of sexuality, which help explain the inconsistencies in the US civil and criminal legal systems. First is the traditional view, which limits sexual activity to marriage and rejects non-marital sex. The second approach is the liberal view, according to which the government should not intervene in the sexuality of citizens, thus making ‘consent’ very important as it can legitimize non-marital sex. The author indicates that the recognition of adolescents’ consent and denial of their damage claims in some civil cases is an example of this paradigm, and it justifies some courts’ distrust of adolescents who, in their opinion, might purposefully have sex with adults and then benefit from damage claims in the ensuing civil suits. The third approach – the egalitarian perspective – is related to feminist theory and highlights whether adolescents can truly give consent to sex with adults by examining whether there exists one of three elements that can invalidate consent: physical force, duress, and deception.
In chapter 7, Drobac focuses on Title VII of the Civil Rights Act of 1964, public policy, and the application of antidiscrimination law. According to Title VII, it is prohibited to discriminate against any individual based on his/her sex, and many states mirror this with fair employment practices statutes (FEPS). An examination of Title VII and state FEPS demonstrates that both fail to take into consideration adolescent workers, as illustrated in the Mama Taori’s case, in which 1) the court confused the adolescents’ capacity to consent to teen-adult sex with their ability to engage in other activities; 2) the court ‘ignored the deterrent and punitive effects of tort law’ (p.156); and 3) the court might morally blame the adolescent victim. Drobac states that decisions like this will produce a negative influence on future child sexual harassment cases. The examination of antidiscrimination law extends to Title IX of the Education Amendments Act of 1972 in chapter 9. In Gebser v. Lago Vista, the adolescent victim who had sex with her teacher failed to recover from her civil damage under Title IX because she did not complain or report the abuse. Drobac contends that the standard of notice requirement established by Gebser is too high for abused students to satisfy. By referring to the adolescents’ developmental immaturity, which was explained in chapter 3, Drobac states that it is unrealistic to expect adolescents to report their abuse. The author lists several other school sexual abuse cases, in which some adjudicators ruled in favor of the adolescent while others did not. Finally, the author examines the social attitudes toward victims of sexual harassment. By referring to research that ‘personal beliefs influence judicial decision making and legal policy’ (p.204), Drobac relates adolescents’ unsuccessful damage claims in civil cases with judicial bias against sexually active youth, particularly teenage girls, who seem to sometimes be considered to be ‘morally corrupt, undeserving, not only of damage awards but also of society’s sympathy and protection’ (p.202). Obviously, these biased judicial attitudes fail to protect adolescent victims of sexual abuse. Collectively, chapters 7, 8, and 9 show readers that although adolescents’ consent to sex with adults will not work as a defense to excuse adult defendants in a criminal trial, the same consent might bar adolescents from recovery of civil damages under Title VII, Title IX, and common law.
After presenting the various problems that exist in dealing with adolescent sexual harassment, chapter 10 concludes with possible solutions. Most of the solutions are general, such as: the argument that Title VII, state FEPS, Title IX, and tort law should be amended to consider adolescents’ development in all contexts; jurists should abandon moral judgement of adolescents’ so-called ‘deviant’ sexual behavior; education and training on sexual harassment should be provided for adolescents; adults should act appropriately as a model for adolescents; etc. However, the most important solution is what Drobac calls ‘legal assent’ – a concept she theorizes to better solve the inconsistent treatment of adolescents’ consent. Different from ‘consent’ in the legal sense, ‘legal assent’ is where adolescents can give legally binding consent without parental permission unless adolescents themselves void it ‘during their minority, or during a reasonable time thereafter’ (p.227). Legal assent is ‘agnostic on the existence of any given juvenile’s maturity’ (p.227) and can only be voided by the adolescents themselves. Moreover, the voiding or revocation is only effective after the court validates it by making a ‘best interests of the child’ analysis. This mechanism informs adults that the minors they want to have sex with have the right to revoke their assent and therefore make the sexual conduct illegal, which will have a deterrent effect causing adults to behave appropriately when dealing with minors. In addition, by referring to the neuroscience of development that adolescents’ brains reach biological maturity around age 21 or 22, Drobac also proposes to set 21 as the age of majority and full adulthood.
What is a pity is that there is no clear definition of ‘adolescent’ and ‘adult’ throughout the book. Thus, if consensual sex occurred between people of similar ages, such as a 17-year old and an 18-year old, which is currently legal in some states, it is not addressed within the legal assent mechanism. In addition, the author’s legal assent mechanism did not make a distinction between adolescent sex with ordinary adults and adolescent sex with adults in a specific powerful or authoritative position. In general, this book is a valuable addition to the existing literature on child sexual exploitation and offers valuable insights into the complex issue of adolescents’ consent to sex with adults. What I find most innovative is the interdisciplinary approach adopted in this book. In particular, the introduction of neuroscience and psychosocial evidence of adolescent development offers powerful insights into why the law should not treat adolescents and adults in the same way. In addition, this book does a wonderful job in combining statistics, scientific evidence, theoretical exploration, and legal analysis to support the author’s arguments and final proposal. The target audience for this book could be adolescents, parents, law and policy makers, and researchers on child sexual abuse. Although what is discussed in this book is situated in the US, the reasoning and analysis of the problem is also inspiring to other jurisdictions in handling similar teen-adult sex issues.