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|Publisher:||University of Chicago Press|
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Sexual Exploitation of Teenagers
Adolescent Development, Discrimination, and Consent Law
By Jennifer Ann Drobac
The University of Chicago PressCopyright © 2016 Jennifer Ann Drobac
All rights reserved.
Sara's Case, Sexual Exploitation, and Legal Terms
When "Sara" (an alias) was fifteen, Michael Cosio, the forty-year-old manager of the movie theater where she worked, befriended her and gained her confidence. Cosio also befriended other teenage employees. He provided them with alcohol, gave them free theater tickets, and even offered to teach sixteen-year-old Sara to drive. Cosio encouraged Sara "to speak with him about her problems, how her parents did not understand her, and about things that mattered to her, a teenage girl." He gave Sara expensive gifts, took her to nice dinners, and gave her cash. Sara had no idea that Cosio was a registered sex offender, convicted of molesting his twelve-year-old niece.
Cosio's attention became increasingly intimate and physical with Sara. At first, Sara rebuffed his physical advances. However, after repeatedly soliciting sexual favors from her, Cosio lied to Sara. He told Sara that he was suffering from a potentially inoperable brain tumor and was not sure how long he had to live. He told her that he loved her. Convinced that she loved her "desperately ill" manager, Sara eventually acquiesced to his sexual advances. After Cosio kissed her, Sara "remember[ed] feeling 'numb' at first. Everything was moving so quickly. Everything was a blur to her." When she was sixteen, Sara had sexual intercourse with him. Cosio promoted Sara to projectionist so that they could engage in sex more easily and frequently in the secluded projection room. When Sara's brother, also a theater employee, observed Cosio kissing his sister in a storage room, Cosio again lied, stating that Sara had forced herself on him. Sara felt ashamed and was concerned about how her brother thought of her.
Cosio's behavior turned increasingly hostile. He began calling Sara a "whore" and a "slut." When Sara and Cosio argued, he threatened to tell her parents about their relationship. Sara was ashamed and fearful of how her parents would respond to her conduct with Cosio. So, she kept their "relationship" a secret. After Sara became pregnant, Cosio had his adult girlfriend take Sara to have an abortion. By this time, Cosio was already in jail, serving time on a larceny conviction. Believing that Cosio was wrongly convicted, Sara continued to write to Cosio in jail.
Sara's parents knew nothing about the "affair." When they finally discovered the cause of her plummeting grades and disturbing behavior, they notified the police. A police officer explained to Sara that Cosio had no tumor and was a registered sex offender. Sara cooperated with the district attorney, who successfully prosecuted Cosio for statutory rape.
I met Sara months later when her mother brought Sara to speak with me about a civil suit against Cosio and the theater that hired him, allegedly in violation of the conditions of his parole. An initial concern was how the law would treat Sara if she and her parents sued the theater owner for sexual harassment. What legal meaning, if any, would Sara's "consent" carry? Should she even consider a lawsuit?
Sara's options at the time were limited. She could have just dropped the matter and moved on to reconstruct her life. Michael Cosio was already in jail, ultimately convicted of unlawful sex with a minor (Sara) under California Penal Code section 261.5. While he was not a source for financial relief, Sara needed the vindication of her own dignity and of the righteousness of her offense regarding his treatment of her. A lawsuit offered that potential because, under California antidiscrimination law, a sexual harassment target may sue the individual perpetrator. The employer, the movie theater, was not initially responsive to overtures by Sara's counsel concerning financial reimbursement for Sara's medical and counseling expenses, physical injuries, and emotional distress. As long as the company ignored her private appeals, only official intervention could have spurred resolution and closure for Sara. California case and statutory laws at that time regarded a minor's consent to sex as irrelevant in the criminal context. Therefore, it was logical to think that Sara's consent would have no bearing on a civil complaint for sexual harassment, sex discrimination in employment, and personal injury. Sara was still a minor, however, so she could not sue in her own name. She had to proceed initially with her mother as the named plaintiff. After she turned eighteen, however, she refiled under her own name against Cosio and the movie theater. Sara endured a lengthy deposition and fruitless arbitration proceedings. After over a year of litigation and discovery, the case settled confidentially out of court shortly before trial. No one will ever know how a judge and jury might have responded ultimately to Sara's claims and the respondents' defenses.
How would you have advised Sara? How should the law have treated her? How should the law have responded to Cosio and the movie theater owners?
Aspirations for This Book
Sexual Exploitation of Teenagers explores the very common problem of the sexual harassment and exploitation of maturing teenagers by adults. It examines in particular detail Sara's case and those of five other "consenting" teenagers: Kati (Starbucks Doe), Oberweis Doe, Donaldson Doe, "Joe" (Mama Taori's Doe), and Willits Doe. These adolescents and millions of their peers are out in the world, experiencing its riches and joys, but also its dangers and challenges. These youth may not have the wisdom — the emotional, intellectual, and experiential tools — to handle the challenges they may face, such as sexual exploitation and harassment. They may not make wise choices in response to sexual advances by their supervisors, teachers, coaches, or mentors.
I originally titled this book Worldly but Not Yet Wise because that name describes the condition of many adolescents who are the subjects of this investigation. However, this more poetic title fails to inform readers that this book analyzes primarily adult sexual predation of teenagers and the exploitation of teen naiveté and new worldliness. I have retained many of the chapter headings, though, to remind readers of the precarious transitional state of these youth, who navigate the world but often without sufficient protection.
Inspired by the stories of many Does and Joes, Sexual Exploitation of Teenagers considers three fundamental questions. First, do teenagers face more sexual harassment than adults? Second, are they developmentally different than adults, and if so, might these differences influence how they deal with sexual abuse by adults? Third, is civil law, as opposed to criminal law, congruent with adolescent "developing capacity"? In other words, does current sexual harassment law adequately protect teenagers? With an interdisciplinary approach, this book answers these overarching questions and tackles logical follow-up questions. For the six profiled teenagers and numerous more, this book considers how the law treated these juveniles and the adults involved. It highlights the conflicts between responsive laws — where the law arguably failed to protect these teenagers — and how civil law reforms might better serve adolescents.
Sexual Exploitation of Teenagers begins by identifying the scope and nature of the sexual harassment of teenagers at work and school. Chapter 2 reveals some disturbing statistics about the sexual abuse of adolescents. It also discusses how adolescents face sexual harassment and exploitation in other surroundings, such as the mall, social and sports clubs, prisons, and the military. Chapter 2's statistics often incorporate harassment by peers (between teenagers) as well as abuse by adults. I acknowledge that peer sexual harassment is a serious problem; however, this book focuses on the abuse of power by adults who target teen agers. It does so for two major reasons. First, I think that training teenagers how to behave respectfully and lawfully with each other is very important but difficult when adults fail to model the appropriate behavior that society expects from juveniles. Second, I believe that adults can usually best handle inappropriate teenage behavior in the locales where the behaviors occur, and not in court. The correction of adult behavior often necessitates operation of law when informal measures do not work. Adults who sexually exploit children should be subject to the operation of corrective legal response.
In addition to targeted harassment, Sexual Exploitation of Teenagers and particularly chapter 2 examine sexually charged messaging and discriminatory situations, often called "hostile" work or school environments in legal parlance. Many incidents of sexual harassment of teens are not severe enough to meet thresholds required for legal remedies. However, every incident contributes to a teenager's ambient influences. These influences may reinforce harmful sex-role stereotypes and discriminatory attitudes about women, girls, and disempowered minorities. They may also subtly facilitate more serious sexual harassment. Appendix 1 provides a list of common sexually harassing behaviors to provide an understanding of the conduct under scrutiny in this book.
Following this discussion of the prevalence of sexual harassment, this book reviews the new cutting-edge science of adolescent development. Chapter 3 explains how teenagers, as a group, are different from mature adults. It explores adolescent neurobiological, psychosocial, and sexual maturation. Adolescents are not simply mini-adults. Chapter 3 provides the background for an evaluation of whether laws designed for adult targets can adequately protect juveniles and their "developing capacities." Thus, chapter 3's review of adolescent development informs a discussion of the law that affects and purportedly protects teenagers.
In chapters 4 and 5, Sexual Exploitation of Teenagers explains in lay terms how law addresses sexual harassment and abuse generally, but also how it may do so inadequately for teenagers. The book highlights conflicting criminal and civil laws, detailing the legal mixed message sent to adults and teenagers. These chapters analyze the public regulation of sexuality and how teenagers first tried to access protection under civil laws. Similar to early sexual harassment adult complainants, these teenagers faced numerous legal difficulties and occasionally apparent hostility from courts.
Chapters 6, 7, and 8 look more particularly at the development of antidiscrimination laws and how they fared in protecting minors. Chapter 6 starts by reviewing the theoretical underpinnings of sexual harassment law. It surveys historical attitudes concerning sexuality and various theoretical perspectives regarding equality. Most foundational support for sexual harassment law assumes that the targets possess legal capacity. Chapter 6 compares theoretical justifications for law with the unique aspects of adolescent sexual abuse and the minors' responses. This chapter highlights the disconnect between sexual harassment legal theory and the actual problems involving minors.
Chapter 7 explains that Title VII of the 1964 Civil Rights Act never contemplated juvenile workers. State fair employment practices statutes, which often mirror Title VII, also fail to address working minors. These lapses create odd results in civil courts when courts conflate adolescent developmental capacity with legal capacity and actual consent with legal consent. Chapter 7 carefully examines the legal decision in Joe's case to trace how and why the law fails to protect American adolescents adequately.
Chapter 8 analyzes California criminal and civil law related to the sexual abuse of minors to show how the laws often conflict in their treatment of adolescent consent. This chapter also follows the precedential influence of California case law, including the case of Donaldson Doe. From California to New York, laws fail to protect minors while treating their consent inconsistently.
Chapter 9 extends the review of sexual harassment laws with the application of Title IX of the Education Amendments of 1972. These amendments, distinct from the CRA, modified several statutes, including the Higher Education Act of 1965. The Education Amendments specifically prohibit sex discrimination at school, and courts have interpreted them to prohibit the sexual harassment by adults of teenagers at school. Chapter 9 ends with a discussion of judicial bias and how judicial attitudes have, in some cases, thwarted efforts to protect abused teenagers.
Sexual Exploitation of Teenagers concludes in chapter 10 with a discussion of possible reforms, some more attractive than others. This chapter posits that, while the sexual harassment of teenagers remains a significant problem, corrective remedies that are more congruent with adolescent developing capacity exist. In particular, chapter 10 offers the idea of "legal assent," the mechanism of a new approach to adolescent consent. Adolescents will engage in sex, sometimes with adults. The challenge is to protect teenagers while they explore the adult world. The adolescent assent proposal affords teenagers the chance to revoke their consent when an adult behaves abusively, takes unfair advantage, or breaches a duty owed to that minor. The assent approach contemplates that adults will treat minors with care, as would a fiduciary, or will "just say no," especially if the law permits maturing teenagers to revoke their "yes" to sex. (A fiduciary is a person in a position of trust and confidence who acts for the benefit of another, often called a beneficiary.) This revocation mimics the operation of traditional contract law defenses, such as unconscionability, undue influence, and duress, that work to invalidate contracts. Once the adolescent abrogates the assent and the court confirms the abrogation, a court must prohibit or exclude any further discussion of the original consent. Chapter 10 provides greater detail regarding this proposed legal reform.
Throughout, Sexual Exploitation of Teenagers tracks the stories of the Doe teenagers who were involved in federal or state civil cases. While Joe and Oberweis Doe were from Tennessee and Illinois respectively, all the other cases involved California teenagers. Of course, it makes a difference that California is a populous state with laws that provide reasonable protection for workers and students. So, many of the high profile cases begin there. In contrast, for example, Indiana has almost no state sexual harassment case law because Indiana's code mandates that a plaintiff obtain written permission to sue from the employer before the aggrieved worker can initiate an action in court under the Indiana Civil Rights Act. Not surprising, employers either don't grant the permission or plaintiffs don't bother to ask. While it is beyond the scope of this book to cover the laws of every state, the discussion of the profiled case histories is relevant for a broad understanding of the issues. Teenagers across the nation face similar exploitation and all (should) have access to federal law. These cases highlight the similarities and variations and they commence a discussion of the problems, inconsistencies, and gaps in protection.
From these case stories, including Sara's, one can evaluate the predicament of teenagers who function in a heavily sexualized culture with mature adults. One can weigh whether adolescent development, immaturity, and naiveté played a role in the controversies and whether these teens may have sent initiating sexual cues, not fully realizing (or, to the contrary, fully aware) how adults might receive their flirtation or acquiescence. I found these cases shocking because I saw sexual imposition, exploitation, and the abuse of power by adults in positions of trust. However, contemporaneous and judicial responses to complaints by these minors ranged from claims that they were misguided juveniles to speculation by Judge Richard Posner that Oberweis Doe was possibly a "siren"! Lay readers may wonder whether these were promiscuous teenagers looking to win the jackpot with a civil suit. (Although, as minors they could not even bring suit in their own names.) Readers might conclude that these were shamefully abused and exploited adolescents for whom others sought redress. Another interpretation is that they were maturing human beings, suddenly aware of the injustice of what occurred to them and looking within the legal system for a fair resolution. Perhaps threads of all three explanations run through a case. Readers might conclude that one or more possibly was a siren, luring a consort to his legal demise. Or one might decide that the perpetrators deliberately cultivated the trust of these teenagers and then exploited them sexually. By analyzing the cases, one can evaluate whether the adult perpetrators took advantage of ineffectual laws to manipulate and abuse their juvenile targets. I argue that they did, if the perpetrators thought about the law at all. This book concludes that current civil sexual harassment law inadequately protects maturing teenagers.
Excerpted from Sexual Exploitation of Teenagers by Jennifer Ann Drobac. Copyright © 2016 Jennifer Ann Drobac. Excerpted by permission of The University of Chicago Press.
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