Legal theorists, liberal philosophers, and feminist scholars have written extensively on questions surrounding consent and sexual consent, with particular attention paid to the sorts of conditions that validate or vitiate consent, and to whether or not consent is an adequate metric to determine ethical and legal conduct. So too, many have written on the historical construction of childhood, and how this concept has influenced contemporary legal culture and more broadly informed civil society and its social divisions. Far less has been written, however, on a potent point of contact between these two fields: age of consent laws governing sexual activity. Partially on account of this under-theorization, such statutes are often taken for granted as reflecting rather than creating distinctions between adults and youth, between consensual competency and incapacity, and between the time for innocence and the time for sex. In this Article, I argue for relatively modest reforms to contemporary age of consent statutes but propose a theoretic reconstruction of the principles that inform them. After briefly historicizing age of consent statutes in the United States (Part I), I assert that the concept of sexual autonomy ought to govern legal regulations concerning age, age difference, and sexual activity (Part II). A commitment to sexual autonomy portends a lowered age of sexual consent, decriminalization of sex between minors, heightened legal supervision focusing on age difference and relations of dependence, more robust standards of consent for sex between minors and between minors and adults, and greater attention to the ways concerns about age, age difference, and sex both reflect and displace more normatively apt questions around gender, gendered power and submission, and queer sexuality (Part III). Ultimately, because adolescent youth as a class are positioned as uniquely desiring and dependent subjects, they warrant particularized treatment under law (Part IV). However, contemporary U.S. law, on account of its adherence to formal neutrality and its predominant language of prohibition, is ultimately a poor forum to detect and adjudicate coercion that arises at the interface of gender, sexuality and age differences. Therefore, not only should age of consent law be reformed and its principles rethought, but law itself should be deemphasized and refigured as a way to help better frame the problems of age and sex rather than as a way to resolve them (Part V).
Joseph J. Fischel,
Per Se or Power? Age and Sexual Consent,
Yale J.L. & Feminism
Available at: https://digitalcommons.law.yale.edu/yjlf/vol22/iss2/4