When an academic comes up with an idea so utterly inane and ridiculous, no one knows about it unless Real Peer Review reveals the folly. But these aren’t ordinary times, and so Indiana lawprof Jennifer Drobac gets to offer her modest proposal at Vox instead.

Every year thousands of adults sexually exploit teenagers — though rarely do these predators receive the notoriety that Roy Moore has achieved. Given the prevalence of the problem, it’s important to recognize how and why teenagers are particularly vulnerable to adult sexual predation, by drawing on our current understanding of psychology.

At Vox, there’s no need for cites, like where she gets this “thousands of adults sexually exploit teenagers.” And in a better world, peer review would rip her to shreds word for word. Adults? You mean 18-year-olds? Exploit? You mean have some sort of vague sexual relations? Predators? What? 

And then she begs the question, “given the prevalence of the problem” she never proved existed. But in Voxland, none of these are problems because she appeals to the woke beliefs of the crowd, and as long as your audience doesn’t question your premises, you get away cheap.

Drobac’s post is under the heading of “Big Ideas,” and whether or not hers deserves to be described as big, it’s certainly wild.

Consent laws, I argue, should allow people within a certain age range (say, 16 to 21) to offer “assent” to sex with a significantly older person — but permit them to revoke that assent at any time. “Assent” is a weaker form of agreement, legally speaking, than “consent.”

Such a system would put an extra onus on adults to make sure that they are not taking advantage of a younger person, strengthening the disincentive to troll malls and sweet-talk people just above the current age of consent.

What she proposes is to create a new age group, above the minimum age of consent (below which would constitute statutory rape) and the age of full majority, for purposes of sex consent. The foundation of her idea is that since psychology shows that brains aren’t fully mature until the mid-20s, people below shouldn’t be responsible for their decisions. They should still have choices, but should also have an out should they change their minds.

Here’s how I imagine it working. Suppose Jane Doe (16) gives legal assent to sex with Troy (30). That assent is legally binding, but would be unilaterally revocable. If the minor concludes that the sex was exploitative, before she reaches 18 (or 19 or 20), she could void her assent. (Parents could not void a minor’s assent for her, under this system.)

Aside from the curious use of the name Troy, as opposed to Jane Doe, the age seems remarkably similar to, say, an Alabama prosecutor’s. What if Troy was 18, so it wasn’t so facially icky, but quite the sweet-talker with a cool car. Just the sort of guy who could “exploit” 16-year-old Jane by appealing to her sex drive and teenage sensibilities. Four years later, Jane is 20, Troy is 22, and Jane, after consultation with her critical gender studies prof, changes her mind. Troy is now a rapist? Well, not yet, as Drobac has added some brakes to the railroad.

The voiding or revocation would not take place automatically, however. A court would review an adolescent’s revocation of assent and make a “best interests” analysis in deciding whether to validate the revocation. (Judges consider the “best interests” of minors regularly in divorce custody cases, for instance.) Most if not all courts will conclude that an adult having sex with a minor is not in a minor’s best interests; therefore, the court is likely to find that Doe may revoke her assent to sex with Troy. Doe’s parents may then sue Troy for Doe’s injuries (since she does not have the legal capacity to sue in her own name).

A condition premised on a foregone conclusion isn’t really much of a condition, putting aside the burden of having to go before a judge at all. Okay, Drobac’s scheme is a ridiculous Rube Goldberg machine designed to create post-hoc liability and culpability. Except it’s really not. Rather, it’s the creation of a minefield designed to make sex untenable, as the risk to the guy is ridiculously high and unpreventable. Screw hormones, this is playing Russian Roulette.

But there is an actual legal basis for this facially bizarre scheme.

We can turn to contract law for some better ideas about handling consent. Contract law understands that children possess not “legal capacity” — on which solid contracts depend — but “developing capacity.” Contract law therefore makes consent by a minor unilaterally voidable. For example, if a teen (or a child, for that matter) buys a car from a dealer and then crashes it, she can often void the contract and refuse to continue making car payments. (Some states might require that she return the vehicle, but a totaled car is of little use to the seller.)

This is a somewhat disingenuous explanation of the legal incapacity of minors to contract. Once a contract is fully performed, they can’t go back on it. The minor who buys bubble gum at the store can’t chew it until the flavor is gone or the jaw aches, then return to the store and demand their money back because they lacked the capacity to contract and have decided to unilaterally void the sale. Not even if they hand over the ABC gum.

Why then would a person incapable of consent to contract be held to consent to sex? The obvious answer is that the act has been consummated. Once done, it can’t be undone. And the similarly obvious retort is that Troy knew what he was getting into when he did the dirty with Jane. He rolled the dice and lost.

Wild? Insanely wrong? Completely unfair? Sure, but so what? There will be proposals to alter the calculus of sex, to criminalize conduct, or at least give rise to liability, in order to fundamentally shift the nature of responsibility to eliminate the “exploitation” of women by male “predators.” While this scheme may get no play, others could well grow legs under the current regime. After all, something must be done.

H/T Mort