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Harm and Remedy for Youth of the #Metoo Era

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Harm and Remedy for Youth of the #Metoo Era #WHOAMI?: HARM AND REMEDY FOR YOUTH OF THE #METOO ERA CHARISA SMITH* Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age eighteen remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture. This Article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades eight and eleven report having ever experiencing school sexual harassment,1 and girls ages twelve to seventeen have the highest rate of sexual assault victimization among other female populations. 2 These figures are undoubtedly low as much victimization goes unreported, particularly among males, communities of color, and certain under-served populations. 3 Engaging the consciousness of the #MeToo movement—one of newfound courage and tenacity among survivors—this article calls for a paradigm shift while deconstructing, reimagining, and reorganizing the problematic legal landscape regarding sexual and gender-based harms between youth. This Article asserts that status quo responses miss concerns unique to minors and * Charisa Smith is an Associate Professor at the City University of New York (CUNY) School of Law and has a J.D. from Yale Law School, an A.B. from Harvard and Radcliffe Colleges, and an LL.M. from The University of Wisconsin Law School. Thanks to the Feminist Legal Theory/Applied Feminism Conference, the Family Law Scholars and Teachers Workshop, the Lutie Lytle Workshop, the CUNY School of Law Faculty Forum, the AALS Section on Children & the Law, the CrimFest Conference, and the Northeast People of Color Legal Scholarship Conference for invaluable feedback; with gratitude to Judith Resnik, Elizabeth Mertz, Heniz Klug, Janet Shibley Hyde, Howard Erlanger, Ruthann Robson, Andrea McArdle, Andrew Sta. Ana, Travis Johnson, Carissa Hessick, Isy India Thusi, Ana Roberts, Ummni Khan, and Cait Mullen; and special appreciation for the research assistance of Isabel Durante, Cristal Enriquez, Ethan Grossman, Nora Howe, Molly Mangus, Cameryn Massey, and Sharmin Piancca. 1 AAUW EDUCATIONAL FOUNDATION, HOSTILE HALLWAYS: BULLYING, TEASING, AND SEXUAL HARASSMENT IN SCHOOL 20 (2001), https://www.aauw.org/files/2013/02/hostile-hallways-bullying-teasing-and-sexual- harassment-in-school.pdf [https://perma.cc/K2PF-NT5P] [hereinafter HOSTILE HALLWAYS]; see CATHERINE HILL & HOLLY KEARL, AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, CROSSING THE LINE: SEXUAL HARASSMENT AT SCHOOL 11 (2011), https://www.aauw.org/files/2013/02/Crossing-the-Line-Sexual-Harassment-at-School.pdf [https://perma.cc/TV4R-SQA7] (finding that 48% of students grades seven to eleven experienced school sexual harassment just during the 2010-11 school year) [hereinafter CROSSING THE LINE]. 2 MICHAEL PLANTY ET AL., BUREAU OF JUSTICE STATISTICS, FEMALE VICTIMS OF SEXUAL VIOLENCE, 1994-2010 at 3 (2013), https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf [https://perma.cc/TDC2-5BCR]; see Patricia Tjaden & Nancy Thoennes, CENTERS FOR DISEASE CONTROL AND PREVENTION, Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence Against Women Survey 6 (Nov. 1998), https://www.ncjrs.gov/pdffiles/172837.pdf [https://perma.cc/HR9U-BUPN] (noting that, of women who reported being raped during their lives, the largest percentage—32.4%—were first raped between ages twelve and seventeen). 3 See infra notes 10216 and accompanying text. Published by Penn Law: Legal Scholarship Repository, 2021 296 UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE [Vol. 23.4 simultaneously over-criminalize, infantilize, and neglect youth. At best, the status quo approach fails to address underlying causes of rape culture and other harms. At worst, it deprives survivors of true remedies and recourse while unfairly branding children with life-long punishment. Sexting among youth is a pervasive habit that presents an archetypal case study. Myriad sexting scenarios can lead to a blunt legal response that fails to recognize the inaccuracy of victim-offender binaries in the digital age. After critiquing and deconstructing the existing criminal law approach, this article recommends a paradigm shift that more aptly situates the “Me” in #MeToo concerning minors. Creating an informed, interdisciplinary typology of instances of sexual and gender-based harm among youth, this Article ultimately proposes a tiered response system defaulting to public health education and harm-reduction, which only resorts to criminal legal intervention in the most severe situations. Although egregious events may require legal redress, a large portion of incidents involve issues beyond the narrow scope of law and impact youth who seek nonlegal or farther-reaching remedies. INTRODUCTION ........................................................................................................................297 I. #METOO WITHOUT YOUTH.................................................................................................301 A. Backdrop: #MeToo Momentum...................................................................................302 B. Underexamined Sexual and Gender-Based Harm Among Minors...............................305 C. Youth: A Universal and Critical Concern ....................................................................320 II. THE PROBLEMATIC STATUS QUO ...................................................................................322 A. Adult Focused Approaches ..........................................................................................322 1. Overcriminalization of Consensual Behavior........................................................324 a. Sexting and Overcriminalization.....................................................................326 2. Unnecessary and Stigmatizing Sex Offender Designation....................................329 B. Infantilization ...............................................................................................................332 1. Sexting and Infantilization ..................................................................................335 C. Inadequate Responses and Neglect...............................................................................336 1. Sexting and Neglected Harm ..............................................................................338 III. THE CORE DILEMMA: FAILURE TO RECOGNIZE #ME IN #METOO FOR MINORS...........................................................................................................................339 A. The Developmental Perspective...................................................................................340 B. Limitations of A Developmental Perspective...............................................................345 C. The Role and Limits of Law.........................................................................................346 IV. SHIFTING THE PARADIGM: A TYPOLOGY OF GRADUATED RESPONSES TO SEXUAL AND GENDER-BASED HARMS AMONG MINORS ..................................348 A. The New Normal: Decriminalization and Extra-legal Gatekeeping as the Default......350 B. Choosing Gatekeepers..................................................................................................351 C. Education, Prevention, and Divestment .......................................................................352 D. Remedies and Proportionality ......................................................................................358 E. Threshold for Legal or Criminal Law Intervention ......................................................361 F. Prospects for Civil Remedies........................................................................................361 CONCLUSION.............................................................................................................................361 https://scholarship.law.upenn.edu/jlasc/vol23/iss4/2 2020] #WHOAMI? 297 INTRODUCTION Seventeen-year-old Dayvon is a talented arts and design student who excels academically, participates in extra-curricular activities, and explores his hobby of being a stylist for friends—particularly during prom season. Fifteen-year-old Kevin began dating Dayvon several months ago and enjoys helping Dayvon create fashion shows and dance videos. Some of the videos and photos these teens consensually create portray their romantic relationship and each of them in states of dress and undress. After monitoring Kevin’s social media accounts (those that he is aware of), Kevin’s dad sees images of Kevin and Dayvon. Enraged, Kevin’s dad reports Dayvon to police as a “sexual predator” who is seducing & digitally exploiting his son. Despite their real-life romantic relationship’s status as legal— between two consenting minors under age eighteen— both youth face criminal charges because visual images and online posting are involved.4 Dayvon is charged with creation, possession, and distribution of child pornography, as well as exploitation of a minor. In addition
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