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Children, Sexuality, and the Law

Children, Sexuality, and the Law

Sacha M. Coupet
Ellen Marrus
Copyright Date: 2015
Published by: NYU Press
Pages: 288
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  • Book Info
    Children, Sexuality, and the Law
    Book Description:

    American political and legal culture is uncomfortable with children's sexuality. While aware that sexual expression is a necessary part of human development, law rarely contemplates the complex ways in which it interacts with children and sexuality. Just as the law circumscribes children to a narrow range of roles-either as entirely sexless beings or victims or objects of harmful adult sexual conduct-so too does society tend to discount the notion of children as agents in the domain of sex and sexuality. Where a small body of rights related to sex has been carved out, the central question has been the degree to which children resemble adults, not necessarily whether minors themselves possess distinct and recognized rights related to sex, sexual expression, and sexuality.

    Children, Sexuality, and the Lawreflects on some of the unique challenges that accompany children in the broader context of sex, exploring from diverse perspectives the ways in which children emerge in sexually related dimensions of law and contemporary life. It explores a broad range of issues, from the psychology of children as sexual beings to the legal treatment of adolescent consent. This work also explores whether and when children have a right to expression as understood within the First Amendment.

    The first volume of its kind,Children, Sexuality, and the Lawgoes beyond the traditional discourse of children as victims of adult sexual deviance by highlighting children as agents and rights holders in the realm of sex, sexuality, and sexual orientation.

    eISBN: 978-0-8147-2421-7
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
  4. Introduction
    (pp. 1-5)

    When we were first approached about editing a book on children, sex, and the law, we were hesitant. First, the topic evokes a powerful taboo—so powerful, in fact, that our initial electronic conversations about the book itself were stymied by e-mail filters designed to catch the prohibited combination of the terms “children” and “sex.” Second, neither of us had written in this area, although both of us publish, teach, and present on various topics related to children and the law. Nonetheless, hesitancy gave way to curiosity as we reflected on the myriad ways in which the discourse could and...

  5. 1 Smells Like Teen Spirit: The Conundrum of Kids, Sex, and the Law
    (pp. 6-29)

    Do kids have agency in the arena of sex? Are they rights holders as well? Does the pursuit of happiness entitle minors to sexual liberties? If so, whose liberties prevail when rights collide, parents or children? Can children be protected from sexual harm without usurping potential sexual rights? These questions and more are discussed herein, serving as an introduction for the chapters that follow.

    Mainly, however, this chapter is a primer on childhood sexuality, particularly as it relates to the pleasures of sex, which form the centerpiece throughout.

    Childhood sexuality encompasses many issues; self-exploration, biological development, evolutionary psychology, the cultural...

  6. 2 Consent, Teenagers, and (un)Civil(ized) Consequences
    (pp. 30-71)

    American criminal and civil laws treat adolescents and their “consent”¹ very differently, even within the same context. Take, for example, the California case ofDoe v. Starbucks,² a 2009 civil sexual harassment case. Timothy Horton, the Starbucks supervisor who seduced his sixteen-year-old barista, ultimately pled guilty to criminal unlawful sexual intercourse with a minor underCal. Penal Code§ 261.5(a).³ In that associated criminal case, Doe’s “consent” to sex failed to provide Horton with a legal defense. In the civil sexual harassment case, however, the federal court left open the possibility that Doe’s “consent” might serve to insulate Starbucks and...

  7. 3 The Wages of Ignorance
    (pp. 72-86)

    If one were looking for a no-win criminal justice embarrassment equivalent to the U.S. occupation of Iraq, our recent adventures with registration and public notice for juvenile sex offenders would be a worthy contender. The current mix of federal and state legal policies toward juvenile sex offenders is a disaster from a wide variety of different perspectives. Often, those creating public policies directed at crime and criminal offenders must choose between ideas that benefit offenders and harsher policies that might prevent crime. But the “genius” of policies like the federal “Amie’s Law,”¹ an expansion of the federal definition of “sex...

  8. 4 Sugar and Spice and Everything Nice: Definitely Not the Girls in the Juvenile Justice System
    (pp. 87-107)

    Mindy is a mom with two daughters, Jill, who is twenty, and Missy, who is fourteen. Jill gave Mindy no problems growing up. She attended school and never cut any classes, had good grades, obeyed curfew, helped out around the house, obeyed all the rules at home and school, and is now attending college. Missy, however, has been a real handful. When Missy was in elementary school she was a sweet girl who all her teachers loved having as a student. She always received good grades, worked hard, and never missed a day of school. Missy was proud that she...

  9. 5 Sexual Media and American Youth
    (pp. 108-132)

    Sexual socialization is the process by which individuals come to understand who they are sexually and learn the appropriate behaviors associated with their sexual identities. While parents, siblings, peers, and other individuals in a youth’s social settings (e.g., school, religious institutions, etc.) are key agents of sexual socialization, various media also play a role. The average American youth spends more time using media on a daily basis than she does attending school or interacting with parents and family.¹ Sexual themes saturate the media to which many young people attend. With the media landscape increasingly shifting toward interactive and user-generated content...

  10. 6 Sex, Laws, and Videophones: The Problem of Juvenile Sexting Prosecutions
    (pp. 133-162)

    Self-portraitists usually risk no legal liability. Yet as modern digital image capabilities encounter teenage hormones and impulsiveness, young digital self-portraitists find themselves prosecuted as child pornographers.

    In the twenty-first century, teenagers armed with cell-phone cameras have acquired increasing capacities to capture and share nude images of themselves and their sexual partners. The act of appending sexualized digital images to e-mails or text messages has become common enough to acquire its own moniker: “sexting.” Concern about the phenomenon began in turn to approach epidemic momentum toward the end of the last decade. A widely publicized online survey of teens aged thirteen...

  11. 7 The Right to Comprehensive Sex Education
    (pp. 163-185)

    In this chapter, I consider efforts to construct a rights-based argument that children, particularly adolescents, are entitled to accurate and non-discriminatory sex education in schools. Traditionally, debates about education have focused on the rights of parents to raise their child as they see fit versus the interests of the state to educate its citizenry. For example, conflicts have tested the limits of the state right to control educational content and compel education against claims by parents that the state has infringed upon their parental rights or free exercise of religion.¹ Often these competing claims are resolved by balancing the rights...

  12. 8 Policing Gender on the Playground: Interests, Needs, and Rights of Transgender and Gender Non-conforming Youth
    (pp. 186-223)

    Sex, gender identity, and gender role usually develop in accordance with one another and within the fairly clear boundaries that define what is traditionally “male” and traditionally “female.” However, this is not always the case. There are some whose natal sex differs from their gender identity and those whose gender role or gender expression is not confined to the traditional male-female binary, lying instead somewhere in between. Such discordance and variance exists not only in adults but in children as well. This chapter explores the ways in which children’s gender identity is addressed in the various spaces in which children...

  13. 9 Gender at the Crossroads: LGBT Youth in the Child Welfare and Juvenile Justice Systems
    (pp. 224-254)

    Each year, approximately five million young people become involved in the child welfare and juvenile justice systems.¹ These youth are overwhelmingly poor.² They are disproportionately likely to have disabilities, which negatively affect their academic performance.³ They are disproportionately youth of color.⁴ And, if the estimates of the general youth population serve as a guide, up to 13% of them engage in same-sex sexual behaviors or experience same-sex romantic desires, are actively questioning their sexual orientation and gender identity, and/or identify as lesbian, gay, bisexual, transgender, or queer.⁵

    The child welfare and juvenile justice systems are charged, respectively, with caring for...

    (pp. 255-258)
  15. INDEX
    (pp. 259-263)