While the Kavanaugh hearings are about a specific political battle, the accusation by Blasey raises important questions about moral accountability. The legal aspects, of course, are a matter for lawmakers and judges.
According to Blasey, she was sexually assaulted by a drunken Kavanaugh when she was 15 and he was 17. While it is evident that sexual assault is wrong, there is the question about the extent to which a 17-year-old attacker is morally accountable. As scientific research shows, the brains of teenagers are significantly different from adults in ways that would seem to make them less accountable for their actions. There is also the fact that children have less experience than adults and are learning how to operate as human beings within legal, social and moral norms. This is not to say that children are devoid of moral agency; it is just to point out the obvious: children are less morally accountable than adults, a fact which is generally enshrined in law.
Since the alleged incident involves sexual assault, it is relevant to bring up the matter of consent. As a general rule children lack the competence to consent and this provides part of the foundation for laws regarding statutory rape. If children lack the competence to consent, then one must consider whether they lack the competence to understand a refusal of consent. If the inability to given consent is based on an inability to understand the concept, then this would seem to also apply to understanding a lack of consent. This view would seem to have an awful entailment about sexual assaults conducted by children: since they cannot understand consent, they cannot be held morally accountable for acting without the consent of others. So, a 17-year-old who assaults a 15-year-old could use the excuse that children lack an understanding of consent, which seems monstrous.
This could be countered by arguing that while children do not understand the concept of consent enough to give consent, they do understand it enough to be accountable for acting against someone without consent. So, while a 15-year-old could not give consent to a 17-year-old, the 17-year-old is competent enough to understand that such acting without (or even with) consent would be harmful and hence wrong.
Another approach is to argue that it is not a matter of understanding. So, even if a child understood the concept of consent, they could still not give consent because they lack the other qualities needed to give consent. As such, children could understand consent and that acting without it is wrong, yet remain unable to give consent. This does raise the question of whether a person who cannot give consent would thus also have a moral status such that they could not violate consent. To use a legal analogy, a person who cannot legally enter a contract could also not be held accountable for breaking a contract. This, obviously enough, is problematic.
One approach is to insist, with righteous indignation, that while children cannot give consent, they can still act in ways that violate the consent they cannot give. So, while a 15-year-old cannot consent to a 17-year-old, if the 17-year-old assaults the 15-year-old, they are still morally accountable—even though the 17-year-old also lacks the moral status needed to grant consent. Since children still have some moral agency and can be expected to realize that it is wrong to assault other people, this makes sense. As such, while children cannot consent (perhaps even to other children), they (in general) would have sufficient moral agency to be accountable for sexual assault. Naturally, the moral (and legal) assessment should consider the impact of being a child has on a person’s decision making and, in general, a child should not be held to the same moral standards as an adult. This is not to say that the children should have a free pass on their misdeeds, simply that they should not be evaluated as adults. This does not, obviously enough, address the current accountability of an adult who engaged in sexual assault or other evil acts as a child. This will be addressed in an upcoming essay.