Gero - Blog Post 6

     In “Bright Lines in Juvenile Justice,” Professor Berg discusses the use of bright lines to determine age as a proxy for culpability because “juveniles are less likely than adults are to be fully culpable for their crimes” (page 4). The examples of Roper, Graham, and Miller that Professor Berg provides are all instances of decreasing culpability by using age as a proxy and applying a bright line. It’s also interesting to investigate the opposite case, where culpability is increased by using age as proxy and applying a bright line. One example is the age of consent, where a bright line is applied by using age as a proxy for culpability in sexual acts. 

Sexual intercourse and consent require some sort of bright line, but I think this is a situation where the bright line could make the court less just.  When it comes to the bright line of consent, I think there are additional case-by-case procedures that should be allowed. If a young person (not necessarily a juvenile) is troubled and hurt enough to want to prosecute their older partner, then they should be allowed to—even if they’re 19. 

            This issue is further complicated by online sexual interactions. In most cases, prosecutors have to provide clear evidence that an adult knew the juvenile was under 18 in order to prosecute. If the older partner didn’t know or the juvenile didn’t explicitly state their age, then often the case can’t go anywhere. This is a place where bright lines under-punish and a case-by-case judgement could provide more justice. 

            Given these complications, the age of consent is something that requires both a baseline bright line and case-by-case judgements. I define the baseline bright line as a place where no case-by-case judgement is necessary when using age as a proxy for culpability. Everyone should agree that if the younger partner was 12 and the older partner was an adult then a judge should not be able to argue against culpability. This baseline bright line could be determined using biological and psychological knowledge on juveniles physical and emotional readiness to engage in such acts. In cases where the younger partner is above the baseline bright line, there is room for case-by-case judgement. Here is where someone who may not be a juvenile would have the ability to prosecute an older partner that they felt took advantage. 

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