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Age and Consent

If nothing else, hoax or no hoax, Franco's recent media moment prompted significant discussion about the meaning of consent. While I think there is general agreement here about what actual verbal consent (and other forms of active consent), there seems to be more disagreement about what age can you consent to sexual acts. This is important because if Franco was seeking consent from someone too young to consent, that request would be meaningless on its face and predatory regardless of how the other person saw it. Don't agree?

I've had many a 11, 12 and 13 year old girl tell me earnestly how their adult "boyfriend" really loves them and their sexual relationship should be legal and permissible. Even if they agree to the relationship, I think most people here—I hope, would agree that a relationship with a post-pubescent 11 or 12 year old would be abhorrent. Right? Then you agree with the general premise that there is an age where consent and individual cognitive and emotional development is less of a factor and we are looking at general norms.


So, let's think about then how we establish issues of age of consent. I have some ideas. Maybe you do too. And this doesn't even get to the moral dimensions. That's another level of subjectivity that I'm not getting into here.

We have to have some age of consent guidelines—-without them, we'd need some normed way to establish competence in each individual case. With Franco, the question has been raised about individual judgment and competence. That is almost an impossible standard to achieve in a broad social sense because you'd talk about legal competence which is established through a series of psychological tests and interviews to establish a base level of understanding about consequences. Legal competence varies from day to day.

Neurocognitive Development should be our standard: This is the standard that probably would be the most beneficial, especially placed within a sociocultural context. When we consider neurodevelopment, the most important thing to consider is the ability to make decisions under highly emotional circumstances, which develops throughout adolescence. Evidence is pretty clear that even in late adolescence, people do not have the same ability to weigh risk and rewards as adults, which leads to differential assessment of risk in activities such as sexual behavior.

People generally engage in increased risk taking behavior as they go through adolescence, because of greater amounts of freedom in late adolescence and in their early 20s (emerging adulthood) and then the risk taking behavior precipitously declines in the mid to late 20s as people have fully matured. So what does this mean in terms of consent? Age of consent as it is currently conceptualized in the US is more aligned with our understanding of adolescent neurocognitive development than it used to be, now that it is 16 to 18, but still does not entirely capture issues in development in late adolescence.


But you want to consider real power differentials, there should be some consideration that before age 25, people who engage in sexual relationships with someone significantly older are in sexual relationships with someone usually in a different phase of cognitive development, especially around issues of decision making. This is important because part of understanding whether something is sexually abusive among children and adolescents is whether one of the people are in a different developmental phase than the other—whether there is a power difference and therefore the potential to exploit the other. That's part of the reason that Romeo and Juliet Laws exist to recognize that sexual relationships between people in the same developmental phase is different than people from two different stages. Extend that outwards, there is always potential for exploitation because of differences in neurodevelopment that is well established at earlier phases before the achievement of cognitive maturity. And that shouldn't be automatically ignored because we have this legal definition of adulthood.

So what you have is Franco soliciting someone at a different neurocognitive phase of development with a differential ability to weigh risks and rewards, even if you ignore all the other power differences. And that's why I think Franco is creepy and exploitative because it's not a level playing field, regardless of how nice he may have been.


Oh and ETA: Even if this is a hoax, this is furthering the fetishization of teenage girls by sensitive adult men. It's far worse than Manic Pixie Dream Girl. That's akin to promoting Manic Pixie Rape Culture.

You may disagree. Please put your comments below.

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