The Neurobiology of Decision Making in High-Risk Youth and the Law of Consent to Sex

Under certain circumstances, the law treats juvenile consent the same as it treats adult decisions, even though a growing body of scientific research demonstrates that children make decisions using less developed cognitive processes. This Article highlights the gaps and deficiencies of legal treatment of juvenile decisions in the context of sex with an adult, as well as integrates new scientific information regarding the decision making of minors in risky situations. Part I examines recent pediatric brain imaging findings during a risky decision-making task. Specifically, a new study demonstrates that brain scan results differed between juveniles at high risk for potentially harmful or criminal conduct and healthy children. These differences within juvenile populations support the notion that particular biological and environmental traits in children may further distinguish juvenile decision making from adult decision making. Part II explores the potential impact of these novel neurobiological findings on the legal treatment of juvenile “consent” to sexual activity. A discussion and summary of the juvenile sex crime statutes of all fifty states demonstrates how the law attributes legal capacity and ability to make legally binding decisions to even very young teenagers. Part II also highlights where state civil and criminal law treat juvenile “consent” inconsistently. Criminal and civil laws’ treatment of juvenile capacity, in the context of sexual activity with an adult, is not congruent with recent neurobiological discoveries regarding juvenile risk taking and decision making. Therefore, society should reconsider designations regarding legal capacity in light of novel neurobiological findings regarding decision making in juveniles.