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Sexual Exploitation of Teenagers"Adolescent Development, Discrimination, and Consent Law"$

Jennifer Ann Drobac

Print publication date: 2016

Print ISBN-13: 9780226301013

Published to Chicago Scholarship Online: September 2016

DOI: 10.7208/chicago/9780226301150.001.0001

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The Development of Civil Law’s Response to Worldly Women and Precocious Teenagers

The Development of Civil Law’s Response to Worldly Women and Precocious Teenagers

Historical Wisdom or Oppressive Judgment?

(p.97) Chapter Five The Development of Civil Law’s Response to Worldly Women and Precocious Teenagers
Sexual Exploitation of Teenagers

Jennifer Ann Drobac

University of Chicago Press

Abstract and Keywords

The civil system addresses personal injury, sexual exploitation, and “consent,” among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human interactions. This chapter provides the civil law backdrop for the analysis of how adults, and especially jurists, might use the new information regarding adolescent development and psychosocial maturity. By comparing the varied traditional civil law approaches to juvenile behavior, this chapter reveals gross legal inconsistencies between criminal and civil law treatment of adolescent capacity and “consent.” Before one evaluates the efficacy of modern anti-discrimination statutes, most not designed to protect “consenting” teenagers, one should consider the development of civil common law rules that cover similar behavior. These common law claims highlight the importance of capacity and consent. They influenced the development of antidiscrimination law and, perhaps, reveal clues about how jurists exported some traditional and discriminatory attitudes to those new laws.

Keywords:   civil law, adolescent capacity, consent, personal injury claims, rule of sevens, negligence, misprision, writ of seduction, comparative fault, tort

Where criminal law often presumes a lack of capacity in juveniles, as chapter 4 detailed, civil law sometimes assumes full legal capacity. The civil system addresses personal injury, sexual exploitation, and consent, among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human interactions. This chapter provides the civil law backdrop for the analysis of how adults, and especially jurists, might use the new information regarding adolescent development and psychosocial maturity. By comparing the varied traditional civil law approaches to juvenile behavior, sections I and II of this chapter reveal gross legal inconsistencies between criminal and civil law treatment of adolescent capacity and consent. Before one evaluates the efficacy of modern antidiscrimination statutes, most not designed to protect consenting teenagers, one should consider the development of civil common law rules that cover similar behavior. These common law claims highlight the importance of capacity and consent. They influenced the development of antidiscrimination law and, perhaps, reveal clues about how jurists exported some traditional and discriminatory attitudes to those new laws.

(p.98) Historical Development of State Statutory and Common Law Personal Injury Claims

Historically, when sexual abuse targets decided to pursue personal civil law claims against the perpetrators, the victims looked to common law (nonstatutory) tort claims for relief. Typical common-law and civil code claims used in sexual harassment complaints include tortious interference with contractual relations, loss of consortium, intentional and negligent infliction of emotional distress, assault and battery, false imprisonment, invasion of privacy, defamation, and misrepresentation.1 Other claims focus on the employer’s failure to satisfy a particular duty. Those claims include negligent hiring and retention, negligent supervision, and breach of a duty of good faith and fair dealing.2 However, most common-law intentional tort claims depended (and still depend) upon the plaintiff’s subjective offense and an absence of consent,3 under the maxim volenti non fit injuria (“a person is not wronged by that to which he or she consents”).4 Thus, a teenager’s consent operates to weaken, if not extinguish, all these claims unless some statutory treatment of consent negates the default.

A Case Example: Barton v. Bee Line, Inc.

A 1933 New York Supreme Court case showcases how a minor’s consent barred her personal injury claims. In Barton v. Bee Line, Inc., the court held that fifteen-year-old Grace Barton, who allegedly consented to sex with a male bus driver, could not recover in a civil case for damages brought by Frank Barton, her guardian ad litem.5 The court arrived at this conclusion even though New York had outlawed sex with a female under eighteen-years-old as a crime. Moreover, New York did not even allow her to sue directly, in her own name and without a named guardian, because she was a minor. Grace Barton claimed forcible rape, and the driver claimed that she consented to sex. The jury found for Grace in the amount of $3,000 (about $53,100 today).6 However, “[t]he court set the verdict aside on the ground that, if plaintiff consented, the verdict was excessive.”7

The appellate court ruled that Grace could not recover civilly, even though her seducer was criminally prosecuted “to protect the virtue of females and to save society from the ills of promiscuous intercourse.”8 (p.99) The court reasoned, “It is one thing to say that society will protect itself by punishing those who consort with females under the age of consent; it is another to hold that, knowing the nature of her act, such female shall be rewarded for her indiscretion.” The court added,

The very object of the statute will be frustrated if by a material return for her fall “we should unwarily put it in the power of the female sex to become seducers in their turn.” Instead of incapacity to consent being a shield to save, it might be a sword to desecrate.9

Desecrate what, exactly? A society that righteously protects only “virtuous” (but still incapacitated) girls? This passage fosters gross stereotypes of young women as it anticipates that young women will use sex to extract money from unsuspecting consorts. The court’s opinion highlights its moral disapproval of possibly sexually active, “promiscuous” young women. This case also demonstrates how Grace’s consent carried no weight in the criminal action against her alleged rapist but carried controlling authority in her personal injury action against the bus line. The civil opinion also heralded the end of the age of consent for civil cases in New York.10 Compare this case to Kati’s against Starbucks. In seventy-five years, progress appears minimal.

This civil law evisceration of the age of consent is not unique to New York. Chapter 8 traces similar patterns in more modern jurisprudence across the nation, particularly in Illinois and California.11 The Bee Line case, juxtaposed against the new neuroscience and psychosocial evidence of adolescent development, resurrects in New York and California the question of whether a minor should be permitted to recover civilly for alleged damages following a violation of criminal law. I argue that the law should permit such civil suits.

Consent as a Limiting Factor in Negligence Claims

For negligence-based tort claims, consent also triggers defenses, such as contributory negligence, comparative negligence, and assumption of risk.12 Other legal doctrines, including the “rule of sevens”13 and the “doctrine of misprision” intervene to thwart civil suits by abuse targets. A claim sometimes survives, however, if brought historically as a writ of seduction or, today, with help from the Restatement (Second) of Torts.

(p.100) The Rule of Sevens.

Under this traditional rule, a minor under age seven cannot give consent, be held liable for negligent conduct, or formulate the requisite mental state to engage in criminal conduct. From ages seven to fourteen, the law presumes that a minor lacks capacity. Therefore, a claimant might rebut the presumption to hold a minor liable for some alleged tort but the default classifies the minor as incompetent. From fourteen to twenty-one (now eighteen), a rebuttable presumption declares that minors are competent to consent and responsible for criminal and negligent conduct.14 Thus, in the context of a civil claim for damages and absent evidence to the contrary, this bright-line rule allows a trier-of-fact to presume that a child over fourteen can consent to sexual contact.15

Aaron Fisher, “Victim 1,” was twelve in 2006 when Jerry Sandusky, a coach at Pennsylvania State University, started molesting him. “Fisher said fear, shame and confusion prevented him from seeking help and telling anyone about his tormentor. … ‘Being a kid, you never know what to do, and you don’t know who to tell because you don’t know who you can trust.’” When he was fifteen, he finally told his mother about the abuse. School officials did not initially believe Aaron.16 One told him to “go home and think about it.”17 Because of his age, fifteen, common law presumed Aaron capable of consent. However, a criminal court found Sandusky guilty of 45 counts of sex-related crimes.18 Aaron settled his civil claims out of court in September 2013.19 One sees from this example how irrational the common law appears in certain cases.

Another bright-line rule similar to the rule of sevens is the “mature minor” doctrine. Courts that apply this rule recognize that some mature minors may consent to conduct reserved for adults. Sometimes, for example, this doctrine permits a terminally ill older teenager to refuse continued medical intervention.20 One can imagine how this common law doctrine might lead to irrational results similar to those stemming from application of the rule of sevens.

The Doctrine of Misprision.

Another archaic rule that may relate to modern treatment of sexual harassment victims is the doctrine of misprision. Under this rule, a plaintiff risked criminal prosecution if she attempted to sue civilly for her physical injuries before first pressing criminal charges against her rapist or seducer.21 The failure to file criminal charges effectively barred a civil suit. Criminal sanctions failed to compensate the victims for the damage to their reputations, medical expenses, (p.101) and the expense of any child conceived. By funneling the redress for a rape or seduction into the public forum, the government minimized the damage to the victim, maximized the societal harm, and retained its exclusive control over vengeance and retribution.22 This result has a parallel in modern jurisprudence, as embodied in the new affirmative defense to Title VII claims, discussed in chapter 7.

The Writ of Seduction.

Common law was not historically without its remedies. Early American civil claims for sexual predation took the form of the writ of seduction.23 This claim escaped the consent trap because the seduced young woman did not sue on her own behalf. Instead, a father sued for his lost honor, now besmirched by his daughter’s damaged reputation, and possibly for his financial losses, tethered to her earning capacity if reduced by pregnancy and motherhood.24 Consent was irrelevant to the seduction claim.25

Professor Lea VanderVelde suggested that two assumptions precluded women from recovering for themselves. First, VanderVelde explained that society assigned control of women to men so that women lacked the autonomy to prevent unwanted sexual activity. Second, she asserted that the law assumed from a woman’s involvement in sexual activity that she consented to it and the resulting consequences: “The act of involvement in the event, even as a victim, spoke for the woman, denying her ability to recover against the man.”26

Do these assumptions still apply to adolescents today? I think that they do. As to the first point, one could argue that current laws do not afford minors self-ownership. For example, the law gives parents the right to wages earned by their children.27 Moreover, as discussed, teenagers do not enjoy many of the contractual and civil rights enjoyed by adults. They must emancipate themselves to enjoy full legal status.28 As to the second point, current law, embodied in the rule of sevens, explicitly posits the capacity in most teenagers to consent.

A few states permitted seduction claims as late as 2003. That year, Professor Joanna Grossman commented on a seduction case filed in North Carolina by a young Duke University coed. She explained that most states had abolished the old torts, such as seduction, related to a property interest in someone’s chastity. She noted, however, that an enlightened vision of female autonomy may not have been the prompting reason. Relying on work by Professor Janice Villiers, Grossman suggested that “the causes of action were abolished, instead, due to a concern (p.102) that plaintiffs would use them to wrongfully extort money from defendants—in other words, a concern that unchaste women would lie to cover up their sexual indulgences.”29 One can evaluate in the chapters that follow whether that concern lives on in adult responses to sexual harassment suits by teenagers. I believe that it does.

Grossman predicted the complete extinction of the seduction claim even though it served in some states to compensate victims for sexual violation. Grossman emphasized that a seduction claim “reinforces disturbing stereotypes about women’s vulnerability, need for protection, and lack of sexual autonomy.”30

In her historical analysis of seduction, Professor Melissa Murray found additional negative stereotyping of women. She wrote, “Tainted with unchastity, the victim was corrupted and was now especially susceptible to the allure of vice and the prospect of future lapses.”31 She added, “Like male defendants, victims too required the deprivation of liberty and the imposition of discipline. Marriage was well-suited to accomplish these tasks, as the institution stripped women of certain liberties and imposed upon them the disciplined identity of ‘wife.’”32 This notion of the tainted victim persists. Recall the discussion of Dr. Sgroi’s work on child abuse, discussed in chapter 3. Sgroi explained, “A sexually experienced child was viewed as an anomaly by most of the general public, who believed that youthful victims of sexual abuse had ‘lost their innocence’ and become contaminated in a way that made them seductive and dangerous.”33 This perspective may explain Judge Richard Posner’s reference to a juvenile target, Oberweis Doe, as a “possible siren.” Chapter 6 reviews the Oberweis case.

The Restatements (Second) of Torts and Consent.

Chapter 4 reviewed some guidance from the second restatements, Torts section 892A regarding the effect of consent and Contracts section 15 concerning mental illness or defect. Again, while not binding on courts, the restatements of the law offer legal guidance to assist a court in making a fair and just decision by summarizing common law precedent and juridical consensus. A section that chapter 4 did not review, the Restatement (Second) of Torts section 892C, offers hope for consenting adolescents who attempt to pursue tort claims. Subsection (2) states, “If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of the members of that class to the conduct is not effective to bar a tort action.”34 This guidance suggests that in states with (p.103) a high age of consent for statutory rape (eighteen), adolescent consent should not operate to bar tort recovery.35

Additionally, the Restatement (Second) of Torts section 892B addresses some of the special facts in Sara’s case. Subsection (2) states,

If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm.36

This provision describes how fraud and misrepresentations can invalidate consent induced by such falsehoods. Recall the manager’s profession of love for Sara, his lies about the brain tumor, and his failure to disclose his status as a registered sex offender. These assertions constituted multiple misrepresentations that vitiated her consent.37 Because she never would have consented to have sex with him had she known the truth, and withdrew her consent once she understood the truth, the fraud paved the way for a sexual harassment suit. Whether a court would have followed this nonbinding legal guidance remains unclear.38 Coming chapters revisit how misrepresentations taint consent and demonstrate disrespect. Suffice it to say here that true consent, as recognized under common law, requires informed understanding.

Public Policy and Civil Personal Injury Claims

While the goals of the criminal and civil systems overlap in some aspects, they remain distinct in others. The differences in motivating justifications for criminal and civil laws may explain the differing treatment of adolescent consent.

Professor Kenneth Abraham describes five functions served by the imposition of civil liability for accidental and intentional injuries. First, many people expect civil tort liability to compensate individuals for their injuries. Abraham reasons that compensation alone is not really a goal of the tort system, because then anyone injured could obtain compensation.39 Second, Abraham instead focused on tortious conduct and other goals, including deterrence.40 Like antidiscrimination laws, tort liability serves to deter bad acts and prevent future harm.41 Third, Abraham mentions loss distribution. Rather than make the plaintiff bear the (p.104) burden of any loss, tort law provides for a broader distribution. The tort system contemplates that insurers will pay damages incurred by policy holders and that those prospective defendants who can increase the costs of their goods and services to pay future judgments will do so.42

Fourth, Abraham suggests that corrective justice warrants civil liability in that it restores the moral balance between parties. For example, when one person intentionally injures another, basic fairness justifies the imposition of liability for damages on the bad actor. Corrective justice seems less appropriate when someone other than the actor, such as a corporate employer, must pay the damage award. In that situation, the disconnect between the intentional harm and the remedial compensation lessens the moral justification. The loss distribution function better justifies the imposition of tort liability in such a case—especially when the tortfeasor lacks deep pockets to pay for the damage caused.43

Fifth, Abraham reviewed the redress of social grievances through the tort system. Much like the function of antidiscrimination law, discussed in chapters 6 and 7, tort law arguably “is a populist mechanism that permits ordinary people to put authority on trial.”44 This conception of tort law envisions the amelioration of problems that affect society more broadly.

Taken together, the goals of the tort system harmonize nicely with the desire to protect adolescents. Arguably, society wants to deter sexual behavior that could harm these juveniles. By making adults responsible for their own conduct or employers liable for the acts of their agents, the system distributes the losses associated with teen injuries to the adults who can more easily cover those losses. Additionally, tort liability supports corrective justice by restoring the moral balance between adults and adolescents who may not have the experience or wisdom to recognize manipulative sexual advances. Tort law allows adolescents to challenge supervisors, teachers, and other adults. When tort law affords adolescent consent unmodified legal significance, it fails those teenagers and thwarts the goals of the system.

A Survey of Recent Personal Injury Cases

When I first began analyzing adolescent consent to sex with an adult via the Westlaw database, I found few cases and not one was a Title VII case. Therefore, I did a word search for civil cases involving adolescents, (p.105) consent, and sex. Of eighteen tort cases involving teens with adult partners, seventeen split fairly evenly on whether they held consent relevant to the tort claims.45 One found that fraud invalidated a minor’s consent, but the court’s reasoning suggested it might have credited the consent had the fraud not occurred.46 Several of the cases that ruled consent relevant served as guiding precedent in Joe’s case against Chris Abson and Mama Taori’s Premium Pizza, discussed in chapter 7. Those nine cases that determined consent irrelevant employed reasoning consistent with each other, most adopting the home state’s criminal law assessment of adolescent consent.

Consent as Irrelevant

In Doe by Doe v. Greenville Hospital System,47 the court ruled that “Mary,” a candy striper under sixteen-years-old and working in a hospital,48 could not legally consent to sexual intercourse with a thirty-one-year-old hospital employee. The hospital argued that a criminal statute had no relevance to a battery (injurious touching) claim. The hospital further asserted that battery required nonconsensual touching. The court disagreed, finding that section 16–3-655(3) of the South Carolina Code49 invalidated consent as a defense to a sexual battery of a minor. The court opined that this law applied in both criminal and civil contexts. The court explained, “As a matter of public policy, the General Assembly has determined a minor under the age of sixteen is not capable of voluntarily consenting to a sexual battery committed by an older person.” Additionally, the court found that the criminal law applied to Mary Doe’s negligent hiring and supervision claims against the hospital.50

The question understandably left unanswered by the Greenville Hospital decision is what the court would have done if Mary Doe had been sixteen, as Sara and Kati were. The Greenville Hospital court consistently applied the criminal law presumptions in a civil case, but this application is hardly shocking because the South Carolina Code defined the age of consent at sixteen. Mary Doe was under sixteen, so the criminal presumptions still applied in her case. The law might have forced the dismissal of Mary Doe’s claims had she been only a few months older.51 Again, one notices the relevance of the state-defined age of consent, which may or may not coincide with the age of majority, typically eighteen.

(p.106) Other courts similarly found that the age of consent, as defined under criminal law, establishes a compelling public policy that underage youth lack the ability to consent to sexual conduct.52 In Bostic v. The Smyrna School District, the court noted the public policy concerns and reasoned, “It would be a bizarre rule indeed that, for purposes of civil liability, would call a teenager’s consent sufficient to make a relationship ‘welcome’ and thus not a basis for civil liability, when the very same relationship is rape under the exacting standards for criminal liability.” Here, the Bostic court stressed the lack of logic in an inconsistent treatment of adolescent consent. The court added, “Bostic’s sadly misguided participation in the affair is no shield from liability for the defendants.”53

In Robinson v. Moore, the court focused on behavior that violates a statute that fixes the age of consent for intercourse. The court explained that under such a statute, “which has as its primary purpose the protection of a definite class of persons from their own immaturity of judgment, the plaintiff’s consent is not a defense to a civil action.”54 This language tracks the reasoning of Restatement (Second) of Torts section 892C. Two other courts specifically cited or discussed this provision and the other torts restatement sections.55

Several cases did not make explicit the public policy rationale but held that consent could not constitute a defense under the circumstances alleged.56 In Doe v. City of Murietta, Officer Derick Boyd engaged in sexual relations with two sixteen-year-old participants in the police department’s Explorer Program. Boyd ultimately pled guilty to criminal unlawful sex with a minor under California law. Each juvenile filed civil tort claims against Boyd, the city, and the police department. In response to the consent defense, the Murietta court held, “But it is well documented that sexual abuse of minors causes significant emotional trauma to minors, with its related societal costs, and, no doubt, for this reason, such conduct constitutes a felony.”57 Without specifically ruling, the court failed to treat consent as a defense to the juveniles’ personal injury claims.

Consent as Relevant

Other courts that found consent relevant to the discussion of civil liability based their determinations on several factors. First, the courts noted that criminal laws provide no private right of action.58 As explained earlier, this reason does not clarify why courts should not apply the criminal (p.107) law presumptions consistently for an existing civil private right of action. Additionally, the absence of a private right of action under a criminal statute fails to address irrationality of finding capacity in one system and a lack thereof in another.

Second, courts pointed to the different purposes of the criminal and civil systems.59 The primary differences relate to the availability of damages and the influence of civil liberties afforded older adolescents. With respect to civil liberties, several courts reasoned that because minors engage in certain adult conduct, civil law should assign them full legal capacity. In Cynthia M. v. Rodney E., the court listed the abortion right and the right to consent to other types of medical treatment.60

Relying on case precedent and statutory law, the Cynthia M. court ruled, “Capacity exits when the minor has the ability of the average person to understand and weigh the risks and benefits.” The Cynthia M. court noted how law “is replete with examples of situations in which a child over the age of fourteen is deemed to have the mental capacity of an adult.”61 Again, these comments confuse a determination of adolescent capacity with other public policy reasons for granting minors the right to engage in these adult activities. As previously noted, just because laws permit an adolescent to obtain an abortion does not necessarily mean that society attributes to her the ability of the average adult to weigh the risks and benefits on a regular basis—or even in most circumstances.

Additionally, the Court decided Cynthia M. in 1991, eight years before Dr. Giedd published his groundbreaking research on adolescent brain development. As chapter 2 explains, most people understand now that average adults and average teenagers do not always think alike. The new research proves that teens do not weigh risks and benefits in the same manner that adults do.

The existence and assessment of damages appears to be the major concern of all of these courts. The damage calculus figures into not only the second factor concerning the different purposes of the criminal and civil systems, but also a third factor regarding unfairness. Specifically, courts that permitted consideration of adolescent consent emphasized the injustice of granting damages to a participant in a crime and of limiting evidence under those circumstances.

The restriction of evidence concerned many tribunals. For example, in Doe by Roe v. Orangeburg County School District, the South Carolina Supreme Court allowed admission of plaintiff’s “willing participation” to the sex but only on the issue of damages, not the issue of liability. The (p.108) court specifically distinguished the lower court’s holding in Greenville Hospital, which found that a child under sixteen did not have the capacity to consent to sex. In Orangeburg, the plaintiff and her parents sued the school district and a teacher who failed to supervise students, during which time the alleged sexual assault occurred. A sixteen-year-old mentally handicapped student allegedly sexually assaulted a fourteen-year-old girl after the coach left them alone in the school gym.62

The Orangeburg court relied on Barnes v. Barnes,63 a challenge to the Indiana Rape Shield Statute. Quoting Barnes, the Orangeburg court reasoned,

Unlike the victim in a criminal case, the plaintiff in a civil damage action is ‘on trial’ in the sense that he or she is an actual party seeking affirmative relief from another party. Such plaintiff is a voluntary participant, with strong financial incentive to shape the evidence that determines the outcome. It is antithetical to principles of fair trial that one party may seek recovery from another based on evidence it selects while precluding opposing relevant evidence on grounds of prejudice.64

This passage highlights the court’s focus on fairness. The court ignored, however, that prejudice regularly justifies the exclusion of probative evidence.65 Additionally, the court missed the point of exclusion. The main reason for excluding the consent was not the prejudice potentially created, but the minor’s incapacity that rendered the consent legally invalid. This court did not even hesitate to put the consenting minor “on trial.”

The other concern pertaining to fairness focused on the minor’s “willing participation” in the conduct.66 Many of these cases invoked concepts of comparative fault, contributory negligence, or assumption of risk to deal with the victim’s conduct.67 Many took a moralistic stance, evaluating whether the victim was “innocent” or not.68 The Cynthia M. court explained, “We have emphasized the word ‘innocent’ because we believe there is an important distinction between a party who is injured through no fault of his or her own and an injured party who willingly participated in the offense about which the complaint is made.”69

Quoting a 1922 Louisiana Supreme Court decision, the Cynthia M. court reasoned, “[T]o recognize the asserted right to recover would be to permit plaintiff to profit by the wrong to which she voluntarily was a party.”70 The Cynthia M. court ignored the fact that a minor lacks the capacity to consent in the criminal context. The court missed the meaning (p.109) of the statutory rape charge. The notion that a minor “profits” when she collects money for medical bills associated with a pregnancy, for psychotherapy, or for emotional and physical distress deserves no comment. Cynthia M. stands as another classic example in which adults blame the victim, this time a fourteen-year-old.

In LK v. Reed, a thirteen-year-old special education student, A.K., took the blame for her own injury, or at least a pro rata share of it. A.K., through her estate administrators, sued another student and the school board after A.K. allegedly agreed to engage in sex with an eighteen-year-old special education high school junior. The LK court criticized the trial court, pointing out that the original holding “necessarily entitles any carnal knowledge victim to civil damages.” The LK court warned, “Under the trial court’s holding, a girl could provoke a criminal prosecution against a sexual partner and recover damages from him, both as a result of her willful and voluntary actions in consenting to, or instigating, a sexual liaison.”71

This cautionary augury conjures the specter of the young seductress, luring men to their financial demise. Anticipating partners outside of the special education environment, the LK court neglected to mention that any potential sexual partner of such a “Lolita”72 remained free to reject her advances and spare himself criminal and potential civil liability. This notion of the child harlot, ready to entrap an unsuspecting adult partner, exemplifies the most dated, sexist notions of women (and girls) as avaricious temptresses.73 The court’s reduction of the fault percentage to even 5 percent seems odd in the context of a thirteen-year-old special education student with an IQ of between sixty-four and seventy-four.74

Despite its ultimate determination, the court explained other disturbing facts:

[A]t the time of these events A.K. was a 13-year-old girl with minimal intellectual and social skills. She was shy and obedient and had never had a boyfriend. She had a history of seizures for which she took daily medication. Her family was poor in financial assets but rich in religious beliefs. In the year preceding these events, A.K.’s father was involved in an accident which rendered him a paraplegic, and A.K.’s mother donated a kidney to A.K.’s younger sister, a surgery requiring extended visits to New Orleans. A.K.’s family stress coupled with her age, intellect, and social skills, render her consent, from a legal standpoint, almost meaningless. Accordingly, we assess A.K.’s fault at 5% and reduce the damages awarded to her by that percentage.75

(p.110) In this passage, the court justified the limit on its award reduction with the family’s circumstances, not with the victim’s conduct. This alternate explanation suggests that the court was sympathetic to A.K.’s family stress and its admirable religious character. Neither factor justified a reduction in the comparative negligence multiplier. The real question was whether A.K. was negligent at all.

In McNamee v. A.J.W., the court suggested that the admissibility of the consent might hinge upon whether the sexual partner was also a minor. This suggestion again reflects an emphasis on comparative fault.76 If neither party possesses the capacity to consent, why should society blame (in a comparative fault scheme) either? Such a policy makes no logical sense. While comparative fault seems inappropriate when applied to minors who lack capacity, the concept hints at a parallel concern—comparative power. The McNamee court was perhaps correct (but for the wrong reason) to emphasize the difference between teen-teen and teen-adult consensual sex.

From Comparative Fault to Comparative Power

Many of the tort cases that found adolescent consent relevant to a civil claim for damages favored comparative fault schemes. In contrast, those cases that found consent irrelevant emphasized the power disparity between teenagers and adult partners. Courts attributed enhanced power to factors such as older age and maturity, a position of authority, and a position of confidence or trust. For example, in Angie M. v. Hiemstra, a minor consented to sex with a forty-eight-year-old physician with whom she worked. The court found that he “took advantage of his position of authority and of Angie’s confidence in him to cause her to develop a dependent relationship on him ‘in much the manner of the phenomen[on] of “transference” between a patient and his or her psychotherapist.’”77

Similarly, in Bohrer v. DeHart, the court rejected a comparative fault instruction after a minister allegedly sexually abused a minor pa rishioner. The court determined that “dependence, transference and the resulting vulnerability do not cease merely because a child physically matures while sexual abuse in secrecy by an adult in a position of trust continues unabated.” The Bohrer court determined that consent was inadmissible as a defense because of a power imbalance caused by the minor’s sexual encounters with a religious counselor.78

Other teen-adult relationships, in addition to those involving doctors (p.111) or ministers, resulted in power disparities acknowledged by courts. A teacher holds a position of authority that permits influence over and creates a power imbalance with an adolescent.79 In Bostic, discussed above, the court explained that “Smith’s affair with Bostic cannot be viewed as consensual, given the minority of the student and the relationship of trust and authority which the coach held over her.”80 Additionally, in Orangeburg, a case that found consent relevant to the issue of damages, the court referenced a South Carolina Code criminal provision that prohibited sexual conduct between a minor and an “actor [who] is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.”81 Thus, both tort and criminal law recognize that a power imbalance creates a greater potential for influence and abuse of a minor. When adults recognize that power imbalances and inequality facilitate the sexual harassment and abuse of minors, they understand how public policy and the regulation of sexual activity influence adolescent experiences.

Conclusions Regarding Public Policy and Civil Personal Injury Law

This brief overview of the traditional legal responses and public policy demonstrates that statutory rape law and tort law share many similar functions and public policy goals. Each attempts to deter and prevent antisocial, harmful behavior. The sexual exploitation of minors conceivably falls into the set of antisocial behaviors under criminal and tort law. Each system holds actors who cause harm responsible, by punishing them with incarceration or by awarding damages against them. Each system operates to protect potential victims from harm through the deterrence and prevention mechanisms. The only function that the criminal system does not share with civil law is the redistribution of the costs of harm suffered. Typically, criminal laws do not compensate the victims for their losses. Tort laws provide for such compensation, however, with damage awards against either the tortfeasor or another responsible party, such as an employer or insurer.

The obvious next question is whether the civil compensation function explains why the criminal and civil systems treat adolescent consent so differently. The answer is not immediately apparent. If minors lack capacity to consent in the criminal arena, why might civil courts consider such consent in the redistribution of the costs of injury—especially at the minor’s expense? A system that shifts the cost of injury resulting from (p.112) sexual misconduct to the juveniles, who can least afford the expense or protect against those costs, appears irrational. It also validates Dr. Mike Males’s concern regarding the scapegoating of powerless teenagers. This system seems even more irrational in light of the evidence regarding adolescent development and capacity. Another factor, already briefly explored, may explain the differences between criminal and civil treatment of consent—moral condemnation.

This review of criminal and civil law also reconfirms several truths. First, the law handles adolescent consent to sexual conduct inconsistently. The system (criminal or civil), the geographic region (or jurisdiction), and the particular claims alleged all influence the legal treatment of adolescent consent. A teenager in California can expect very different treatment than a teenager in Indiana, where the age of consent is two years younger. Second, common law claims may provide little or no relief to consenting teens. Courts may conclude that a minor appreciated the consequences of her consent to specific conduct. On the other hand, depending upon where the minor works, state criminal law may pave the way for tort recovery via Restatement (Second) of Torts section 892C(2). Third, statutory rape laws draw bright-line rules determining the age of consent and denying capacity below the set age. In sum, no national consensus exists regarding the age of consent or the treatment of adolescent consent to a broad variety of “adult” activities, including sex. Judicial response variance concerning the exact same consensual behavior begs the question why criminal and civil law handle consent so differently. Is the answer simply moral opprobrium? My conclusion, clear from the foregoing discussion, is yes.


(1.) These personal injury claims relate to lost contract opportunities, the lost companionship of loved ones, outrageous or negligent conduct that results in emotional distress, injuries caused by fear or offensive touching, wrongful detention, and reputational injuries associated with false rumors, misrepresentations, or the disclosure of private facts.



(4.) BLACK’S LAW DICTIONARY 1569 (7th ed. 1999) (referring also to assumption of risk); see also Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817, 860 (1996).

(5.) 265 N.Y.S. 284 (2d Dept. 1933). This case is a classic “he said, she said” case. I acknowledge the continuing problematic nature of credibility determinations in alleged rape cases and the bias against complaining women who sue for civil damages. I addressed such bias in Chapter 9.

(7.) Bee Line, 265 N.Y.S. at 284.

(8.) Bee Line, 265 N.Y.S. at 285.

(9.) Bee Line, 265 N.Y.S. at 285 (quoting Smith v. Richards, 29 Conn. 232 (1860)).

(10.) The “age of consent” commonly refers to the age at which a minor, someone under 18 years old, may legally consent to engage in sexual activity with an adult and, thereby, insulate that adult from criminal prosecution. But see Donaldson v. Dep’t of Real Estate, 36 Cal. Rptr. 3d 577, 588–89 (Cal. Ct. App. 2005) (discussing that “the age of consent” may refer to the age a minor can legally consent to marry).

(11.) See, e.g., Doe v. Starbucks, Inc., No. SACV 08–0582 AG (CWx), 2009 WL 5183773, at *2, *7–8 (C.D. Cal. Dec. 18, 2009) (granting in part and denying in part motions for summary judgment).

(12.) Cf. Detmer v. Bixler, 642 N.W.2d 170, 176–77 (Neb. Ct. App. 2002) (affirming rejection of negligence claims because minor consented to sexual intercourse (p.299) and, therefore, no tort claim existed against her partner). See generally ABRAHAM, supra note 3, at 137–58.

(13.) In the criminal system, this rule is also known as the infancy defense. See generally MARTIN R. GARDNER, UNDERSTANDING JUVENILE LAW 1880–81 (1997) (discussing the infancy defense and capacity to commit a crime); WAYNE R. LA-FAVE & AUSTIN W. SCOTT, HANDBOOK ON CRIMINAL LAW 351 (1972).

(14.) See Doe v. Mama Taori’s Premium Pizza, No. M1998–00992-COAR9-CV, 2001 WL 327906, at *5 (Tenn. Ct. App. Apr. 5, 2001).

(15.) Another bright-line rule similar to the rule of sevens is the “mature minors” doctrine. The Mama Taori’s court recognized that some mature minors may consent to conduct reserved for adults. Id. at *5. See generally GARDNER, supra note 13, at 6 (discussing the mature minor and consent to medical treatment).

(16.) Joseph Rhee et al., Sandusky Victim 1 Steps Out of Shadows, Says Jus tice Took Too Long, ABC News, Oct. 19, 2012, http://abcnews.go.com/US/sandusky-victim-reveals-identity-justice-long/story?id=17511612#.UcHCchZCok8 (last ac cessed Nov. 7, 2014).

(17.) Jason Wheeler, Sandusky’s ‘Victim No. 1’ talks about preventing child sex abuse, WFAA.com, Aug. 13, 2013, available at www.wfaa.com/news/local/dallas/Sanduskys-Victim-No-1-in-Dallas-talking-about-preventing-child-sex-abuse-219345961.html (last accessed Nov. 7, 2014) (internal quotation marks omitted).

(18.) Rhee, supra note 16, at 2.

(19.) Adam Lidgett, Person Identified as ‘Victim 1’ Reaches Settlement with Penn State in Sandusky Abuse Case, STATECOLLEGE.COM, Sept. 6, 2013, available at www.statecollege.com/news/local-news/person-identified-as-victim-1-reaches-settlement-with-penn-state-in-sandusky-abuse-case,1379706 (last accessed March 3, 2015).

(20.) See generally Gardner, supra note 13, at 6 (discussing the mature minor and consent to medical treatment).

(21.) See VanderVelde, supra note 4, at 847.

(22.) See id. at 846–48.

(23.) Charles A. Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 SETON HALL LEGIS. J. 1, 14 & n.63 (1997); VanderVelde, supra note 4, at 818–19; cf. Bostic v. Smyrna Sch. Dist., No. 01–0261, 2003 WL 723262, at *7 (D. Del. Feb. 24, 2003) (rejecting loss of filial consortium claim based upon an 1828 Kentucky seduction action that allowed a family to recover for the “dishonor and disgrace” of a seduced child).

(24.) VanderVelde, supra note 4, at 819. Originally, the writ of seduction, a feudal writ, allowed masters (employers) to recover for the lost work of their servants (employees). Thus, when a female servant became pregnant, the master could seek reimbursement for his financial losses. This system ignored the servant’s losses and the needs of her newborn. The law extended these rights to fathers with daughters working outside of the fathers’ households. Id. at 821.

(p.300) (25.) Id. at 825.

(26.) Id. at 828–29.

(27.) See, e.g., CAL. FAM. CODE § 7500 (West 1994); Singer v. Brookman, 578 N.E.2d 1, 6 (Ill. App. Ct. 1991) (finding that “in the absence of specific fiduciary relationship, a parent has the right to the use of a minor child’s earnings and services”); Biermann v. Biermann, 584 S.W.2d 106, 108 (Mo. Ct. App. 1979) (holding that a parent having custody may give the minor child license to work and retain the earnings of that child); Peot v. Ferraro, 266 N.W.2d 586, 731 (Wis. 1978) (ruling that a “parent is entitled to a minor child’s wages and services as a matter of right”).

(28.) BLACK’S LAW DICTIONARY, supra note 4, at 1011 (defining minor as “a person who has not reached full legal age” and an emancipated minor as a “minor who is self-supporting and independent of parental control, [usually] as a result of a court order”). See generally Gardner, supra note 13, at 31–32 (examining the concept of emancipation).

(29.) Joanna Grossman, Is the Tort of Wrongful Seduction Still Viable?, FIND-LAW, Feb. 11, 2003, http://writ.news.findlaw.com/grossman/20030211.html. Professor Melissa Murray confirms this perspective. She wrote, “Indeed, for many critics [of seduction laws], it appeared that those most in need of law’s protection were men, who, because of civil and criminal seduction laws, could be tricked and duped by scheming women.” Melissa Murray, Marriage As Punishment, 112 COLUM. L. REV. 1, 38 (2012).

(30.) Grossman, supra note 29.

(31.) Murray, supra note 29, at 38.

(32.) Id. at 33.

(33.) Suzanne M. Sgroi, M.D., Discovery, Reporting, Investigation, and Prosecution of Child Sexual Abuse, 29 SIECUS REP, Oct./Nov. 2000, at 6. One of the tort opinions that I reviewed in Sex and the Workplace treated the mentally challenged female victim as a conniving seductress. Drobac, Sex and the Workplace, supra text preceding note 1, at 530–31.

(34.) RESTATEMENT (SECOND) OF TORTS § 892C(2) (1979).

(35.) See Wilson v. Tobiassen, 777 P.2d 1379, 1384 (Or. Ct. App. 1989) (holding that a minor’s incapacity to consent to sexual acts under Oregon Revised Statute § 163.315(1) extends to civil cases).


(37.) See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 18, at 119 (5th ed. 1984); see also Hackett v. Fulton County Sch. Dist., 238 F. Supp. 2d 1330, 1369–70 (2002); In re Neal, 179 B.R. 234, 237 (Bankr. D. Idaho 1995).

(38.) See Leleux v. United States, 178 F.3d 750, 755 (5th Cir. 1999) (finding that a naval officer’s fraudulent concealment of venereal disease invalidated consent of partner to sexual intercourse). But cf. Food Lion, Inc. v. Capital Cities/ABC, (p.301) Inc., 194 F.3d 505, 518–19 (4th Cir. 1999) (giving legal effect to consent to an entry and allowing consent as a defense to a claim of trespass, even though it was obtained by misrepresentation or concealed intentions).

(39.) ABRAHAM, supra note 3, at 14–19.

(40.) Id. at 15. Abraham ultimately decided that tort law “does not serve any single goal … [but] performs a ‘mixed’ set of functions.” Id. at 19.

(41.) Abraham modified this goal by calling it “optimal deterrence.” Id. at 19. He explained that, under this justification, liability should deter only excessively risky conduct. Some conduct is not risky enough to justify the deterrence costs that people might incur. See id. at 15.

(42.) Id. at 16–17.

(43.) Id. at 14–17.

(44.) Id. at 19.

(45.) Eight cases found consent relevant. Beul v. ASSE Int’l, Inc., 233 F.3d 441 (7th Cir. 2000); Teti v. Huron Ins. Co., 914 F. Supp. 1132 (E.D. Pa. 1996); Cynthia M. v. Rodney E., 279 Cal. Rptr. 94 (Cal. Ct. App. 1991); McNamee v. A.J.W., 519 S.E.2d 298 (Ga. Ct. App. 1999); Robinson v. Roberts, 423 S.E.2d 17 (Ga. Ct. App. 1992); LK v. Reed, 631 So. 2d 604 (La. Ct. App. 1994); Doe by Roe v. Orangeburg County Sch., 518 S.E.2d 259, 261 (S.C. 1999); and Michelle T. by Sumpter v. Crozier, 495 N.W.2d 327 (Wis. 1993). Nine cases found consent irrelevant. Bostic, 2003 WL 723262; Doe v. City of Murietta, 126 Cal. Rptr. 2d 213 (Cal. Ct. App. 2002); Angie M. v. Hiemstra, 44 Cal. Rptr. 2d 197 (Cal. Ct. App. 1995); Bohrer v. DeHart, 943 P.2d 1220 (Colo. Ct. App. 1996); Landreneau v. Fruge, 676 So. 2d 701 (La. Ct. App. 1996); Pettit v. Erie Ins. Exch., 699 A.2d 550 (Md. Ct. Spec. App. 1997); Wilson, 777 P.2d at 1379; Doe by Doe v. Greenville Hosp. Sys., 448 S.E.2d 564 (S.C. Ct. App. 1994), cert. dismissed as improvidently granted, 464 S.E.2d 124 (S.C. 1995); and Robinson v. Moore, 408 S.W.2d 582 (Tex. Ct. App. 1966).

(46.) See Hackett v. Fulton County Sch. Dist., 238 F. Supp. 2d 1330, 1369 (N.D. Ga. 2002) (finding that the lies the science teacher told his male student induced the student’s consent to inappropriate sexual touching). The court held, “[C]onsent to the act by the person affected negates the contact as an actionable tort. ‘As a general rule, there can be no tort committed against a person consenting thereto, if that consent is free and not obtained by fraud, and is the action of a sound mind.”’ Id. (quoting Mims v. Boland, 138 S.E.2d 902, 906 (1964)).

(47.) Greenville Hosp., 448 S.E.2d at 564. The lower court returned a verdict for Mary in the sum of $545,000. The trial judge reduced the award to $250,000 under the South Carolina Tort Claims Act. Id. at 565. The jury rejected a claim by Mary’s father “for loss of custody, companionship, and service.” Id. The father’s claim appears to be akin to a seduction claim already discussed.

(48.) The Workers’ Compensation Act did not preclude Mary Doe’s tort claims because she received only classroom credit and job skills training in exchange for her services. Greenville Hosp., 448 S.E.2d at 567–68. Thus, the court did not (p.302) consider her an employee. Id. Non-employee status also would preclude someone like Mary Doe, engaged in volunteer work, from suing under an applicable state fair employment practices statute. See, e.g., O’Connor v. Davis, 126 F.3d 112, 114–16 (2d Cir. 1997) (finding that volunteer student intern did not qualify as an employee under Title VII), cert. denied, 522 U.S. 1114 (1998); Lippold v. Duggal Color Projects, Inc., No. 96 CIV 5869(JSM), 1998 WL 13854, at *2 (S.D.N.Y. Jan. 15, 1998) (confirming that unpaid volunteer cannot sue under Title VII because she is not an employee).

(49.) S.C. CODE ANN. § 16–3-655(3) (Law. Co-op. 1985).

(50.) Greenville Hosp., 448 S.E.2d at 566.

(51.) See, e.g., Teti, 914 F. Supp. at 1139–40 (finding that because the criminal law permits a consent defense when the victim is sixteen, the civil law must recognize the capacity of minors sixteen and older).

(52.) Wilson, 777 P.2d at 1384; see also Angie M., 44 Cal. Rptr. 2d at 202 (acknowledging “the strong public policy that underlies the Legislature’s enactment of the multiple statutes directed at protecting minors from sexual exploitation”). The Angie M. court distinguished another sexual battery statute, California Civil Code § 1708.5, which required a lack of consent. Angie M., 44 Cal. Rptr. at 202–03. Despite the Angie M. court’s focus on public policy regarding minors, that reference suggests that the court would have denied a claim by Angie M. under § 1708.5.

(53.) Bostic, 2003 WL 723262, at *6 (citing Mary M. v. N. Lawrence Cmty. Sch. Corp., 131 F.3d 1220, 1227 (11th Cir. 1997), cert. denied, 524 U.S. 952 (1998)). The Bostic court discussed consent in the context of the Title IX claim as well as the other civil claims and, therefore, referred to whether the plaintiff welcomed the sexual relationship. Id.

(54.) Robinson, 408 S.W.2d at 583. The court was incorrect that other courts in this country have uniformly adopted this position.

(55.) Pettit, 699 A.2d at 557 (evaluating RESTATEMENT (SECOND) OF TORTS § 892A, cmt. b); Wilson, 777 P.2d at 1384 (discussing RESTATEMENT (SECOND) OF TORTS § 892C).

(56.) Bohrer, 943 P.2d at 1227; Landreneau, 676 So. 2d at 707; Pettit, 699 A.2d at 557.

(57.) City of Murietta, 126 Cal. Rptr. 2d at 226 (footnote omitted).

(58.) McNamee, 519 S.E.2d at 302. See generally Beul, 233 F.3d at 450–51.

(59.) Cynthia M., 279 Cal. Rptr. at 97; McNamee, 519 S.E.2d at 302.

(60.) Cynthia M., 279 Cal. Rptr. at 97.

(61.) Id. (quoting Prosser & Keeton, supra note 37, § 18, at 115) (citation and internal quotation marks omitted); see also McNamee, 519 S.E.2d at 302 (using the same words as the Cynthia M. decision).

(62.) Orangeburg, 518 518 S.E.2d at 261.

(63.) Barnes, 603 N.E.2d at 1342.

(64.) Orangeburg, 518 S.E.2d at 261 (quoting Barnes, 603 N.E.2d at 1342).

(p.303) (65.) See FED. R. EVID. 403 (directing that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”).

(66.) Orangeburg, 518 S.E.2d at 261; see also Cynthia M., 279 Cal. Rptr. at 98; LK, 631 So. 2d at 607.

(67.) See, e.g., Beul, 233 F.3d at 451 (opting for a comparative fault rule); Robinson, 423 S.E.2d at 18 (evaluating contributory negligence and assumption of risk to find that a thirteen-year-old can “appreciate dangers of his environment and … avoid consequences associated with exposure to such dangers”); LK, 631 So. 2d at 608 (determining that their “analysis must include the principles of comparative fault”).

(68.) See, e.g., Cynthia M., 279 Cal. Rptr. at 98; LK, 631 So. 2d at 607; Orangeburg, 518 S.E.2d at 259–60 (noting that the “District proffered testimony tending to dispute the claim Doe was a sweet, innocent young girl with testimony that she had been overheard making sexually explicit statements”).

(69.) Cynthia M., 279 Cal. Rptr. at 98.

(70.) Id. (quoting Overhultz v. Row, 92 So. 716, 717 (La. 1922)) (internal quotation marks omitted). Having stated that Overhultz was “directly on point,” the Cynthia M. court then applied reasoning formulated for an adult. Id. In its fi-nal footnote, the Cynthia M. court admitted that the Overhultz plaintiff was not a minor. Id. at 98 n.14. The court then stated, “However, we are not inclined to dwell on outdated legal fictions concerning the ability of underage females to consent to sex.” Id. Commenting upon the current prevalence of underage sexual activity and the problem of pregnancy among unwed teenagers, the court added, “To cling to vestiges of a bygone era, is to ignore the contemporary realities of nature.” Id. In this footnote, the Cynthia M. court arguably blamed teenagers for their promiscuity and particularly teenage girls for their nonmarital pregnancies. The court’s treatment of their consent and effective denial of their damages may not prove to be the best way to handle these social ills.

(71.) LK, 631 So. 2d at 605, 607; see also Orangeburg, 518 S.E.2d at 261 (reasoning that “[t]o prohibit such evidence [of consent] would effectually allow a victim to come in and tell a one-sided version of events, without being subject to any real cross-examination or impeachment as to the damages actually suffered”).

(72.) Ironically, in the novel, Lolita was not the narrating protagonist but was the object of a pedophile’s desire. See generally VLADIMIR NABOKOV, LOLITA (Vintage Books 1989) (1955) (telling the story of a man sexually obsessed with his landlady’s twelve-year-old daughter).

(73.) See Marybeth Hamilton Arnold, “The Life of a Citizen in the Hands of a Woman”: Sexual Assault in New York City, 1790–1820, in PASSION AND POWER: SEXUALITY IN HISTORY 35, 40–45 (Kathy Peiss & Christina Simmons eds., 1989) (discussing sexual assault of women at the turn of the nineteenth century and highlighting the popular myth of sexually voracious working class women). Arnold (p.304) noted the rape of a thirteen-year-old girl who was likened to a harlot. Id. at 42. Counsel for the defense argued:

[If] anything of an improper nature passed between them, I am inclined to believe that it has been with her consent. The passions may be as warm in a girl of her age as in one of more advanced years, and with very little enticement she may have consented to become his mistress. …[It] is said her youth renders it impossible she should have been a lewd girl. Who is acquainted with the dissolute morals of our city, and does not know that females are to be found living in a state of open prostitution at the early ages of 12 and 13 years?

Id. (citing Report of the Trial of Richard D. Croucher, on an Indictment for a Rape of Margaret Miller, on Tuesday, the 8th day of July, 1800, at 15, 18 (New York: 1800)); see also Estelle B. Freedman, “Uncontrolled Desires”: The Response to the Sexual Psychopath, 1920–1960, in PASSION AND POWER, supra, at 199, 212 (explaining that victims of sexual predators were described “as ‘seductive,’ ‘flirtatious,’ and sexually precocious”). But see Kathy Peiss, “Charity Girls” and City Pleasures: Historical Notes on Working Class Sexuality, 1880–1920, in PASSION AND POWER, supra, at 57, 64 (discussing “charity girls,” working women who traded sex for gifts and attention).

(74.) LK, 631 So. 2d at 605.

(75.) Id. at 608.

(76.) McNamee, 519 S.E.2d at 302–03.

(77.) Angie M., 44 Cal. Rptr. 2d at 200 (noting the partner’s age, position of authority, and position of confidence).

(78.) Bohrer, 943 P.2d at, 1227 (citing E. Cruz, When the Shepherd Preys on the Flock: Clergy Sexual Exploitation and the Search for Solutions, 19 FLA. ST. U. L. REV. 499 (1991)).

(79.) Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 646 (1999) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995), in holding that “the nature of [the State’s] power [over public schoolchildren] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults”).

(80.) Bostic, 2003 WL 723262, at *6.

(81.) Orangeburg, 518 S.E.2d at 260 (reviewing S.C. Code § 16–3-655(3)).