Smallville II: “Dawson Casting” and Minors

The first season of Smallville is set during Clark Kent’s freshman year in high school. It premiered in October 2001, when Tom Welling (Clark) was 24, Kristen Kreuk (Lana) was 18, and Allison Mack was 19, making them between four and ten years older than the characters they were portraying. Casting adults as high school kids is not that uncommon and has become known as “Dawson Casting” after one of the more egregious examples, though it’s been going on almost as long as film has existed.

There are a variety of reasons for this, and the previous link discusses a lot of them, but in short, young adults are just a lot more suitable for the actual acting job than teenagers, partly for logistical and partly for legal reasons. As to the former, young adults tend to be better able to memorize, recall, and deliver lines believably than teenagers. Some of this is intellectual development, some of this is a broader depth of experience, and some of it is just getting past the emotional whirlwind that is adolescence. There are real world legal issues too: teenagers have limited work hours, and it’s frequently illegal to show them doing things that kids actually do (e.g. make out).

But this blog is about real world legal issues in comic book stories, not the legalities of Hollywood. Suffice it to say that this sort of thing is actually an issue within the series. As always, spoilers follow.

I. The Talon

Perhaps the most glaring example of a teenage character doing things that would be problematic for someone their age is Lana coming to be a partner and manager at the Talon. This implicates both minors’ capacity to contract and child labor laws.

A. Capacity

Children are not adults, and their ability to perceive the consequences of their actions are less than an adult’s would be. This is why the law generally recognizes that minors’ capacity to contract is different than adults. In general, a minor who agrees to a contract for something other than “necessaries,” i.e. food, clothing, goods necessary for the maintenance of a household, can “disaffirm” that contract at any time before they reach majority age. So a minor who walks into a restaurant and orders dinner would be required to pay, but a minor who enters into a business contract could theoretically get out of that contract simply by asking. They are then required to give back whatever it is they got, but this is why most businesses and organizations require that a minor’s parent sign relevant contracts and will generally refuse to deal directly with minors: they do not want to go through the hassle of having to take back whatever it is the minor contracted for.

So Lex Luthor offering Lana partial ownership in the Talon, aside from being incredibly generous, would definitely be something his lawyers would have had an absolute cow over. When this happened, Lana was either 14 or 15 (time is kind of… squishy, and her birthday is never stated), and Kan. Rev. Stat. § 38-101 provides that majority age for contracts is 16. Unless her legal guardian signed off on the deal, and there’s no evidence in the show that this happened, Lex would have almost certainly been acting against all legal advice. Granted, this probably wouldn’t be the first time, but it’s still a problem.

There is a way around this though: emancipation. Kan. Rev. Stat. § 38-108 grants district courts the ability to declare a minor to have all the rights of majority, including capacity to contract and to sue and be sued. This was mentioned in passing during the first season, before Lana’s guardian moved to Metropolis, and though it was never actually established that this happened, given both her involvement in the Talon and rather conspicuous independence thereafter, it seems likely that it did.

B. Labor Laws

And the reason is that even if it is technically legal to transfer ownership to Lana, establishing a partnership, it was probably illegal for her to run the place. We talked about child labor a little while ago, and Kan. Rev. Stat. § 38-603 prohibits anyone under the age of 16 from working before 7AM or after 10 PM on a school night, for more than 8 hours at a time, or for more than 40 hours in a week. Anyone who’s run a coffee shop that was open late can tell you that you basically have to do all three of those things. The place would have had to close no later than 8PM for Lana to be finished closing up before she turned into a pumpkin. But the show pretty clearly indicates that she was responsible for all of those things, including showing up to accept pastry deliveries at 5AM. Lana is, to all appearances, a remarkably mature and responsible girl (though perhaps not the best judge of character), who might actually have been capable of handling that kind of responsibility. But it isn’t clear that the law would have let her.

Emancipation wouldn’t work here either. The emancipation statute permits minors to contract and dispose of their own property, but it does not grant any exceptions to the child labor statutes. So there’s a problem there.

Now if Lana had been as old as Kreuk was when the season was shot, there wouldn’t have been any problems, which is probably why this is a little less noticeable in the show. It’s unusual, but not unheard of, for someone in their late teens or early twenties to be running a business like the Talon, particularly if they’ve got a benefactor (read “parent”) in the background somewhere. So seeing Lana run the Talon doesn’t look wrong. Just like Clark and Lana walking into a bar at the beginning of season three and not getting carded doesn’t look wrong either: Welling was 26 and Kreuk 21. But in-universe, this really is a problem.

II. Various Relationships

Then there’s the issue of Lana’s relationship with Jason. They met during the summer of Lana’s junior year, when she is presumably 17. Jason, on the other hand, is in college, making him probably 19. This looks kind of like a statutory rape situation waiting to happen, doesn’t it? Which is probably why Jason gets fired when the school learns about their relationship. So why doesn’t he go to jail?

Because the relationship, while arguably sketchy, is not actually illegal, at least not in Kansas (and certainly not in France, where it started). Kansas defines “indecent liberties with a child” as sexual contact with a person who is under 16 but more than 14 (Kan. Rev. Stat. § 21-3503). Other statutes for more serious crimes have similar definitions. Basically, Lana was legal. This is something a lot of people don’t understand, and it’s a common feature of television for talk of statutory rape to emerge whenever a girl is under 18. A character actually attempts to justify the relationship by pointing out that both of them are 18. Which, while true, is not strictly relevant, as the relationship was legal even before Lana’s birthday. The fact of the matter is less than a dozen jurisdictions still have the age of consent pegged at 18, though the fact that California is one of them may explain some of this.

Either way, the age of consent in Kansas is 16, so starting in season three, the entire class is basically fair game. This is actually not that uncommon. It’s that way in at least half of the US, and many states even have “Romeo and Juliet” laws which create an exception for couples who are no more than two years apart, so a pair of high school sweethearts don’t get carted off to jail as soon as one of them turns 16. Most of Europe has this limit set at 14 or 15, though it’s as high as 17 in Ireland and 18 in Malta, of all places.

III. Conclusion

Casting actors older than the characters they portray is fairly common, especially where teenage characters are involved. This can make certain things legally possible on screen, but it also increases the audience’s willingness to suspend our disbelief when high school kids are shown doing stuff that there’s no way they would be able to do in real life. I don’t care if you are Superman, most bouncers aren’t letting you in the door and most bartenders aren’t serving you booze unless you can produce some sort of ID, fake or otherwise. There’s more to talk about in this show, so stick with us.