Children and Youth in History

Introduction

In western law, the age of consent is the age at which an individual is treated as capable of consenting to sexual activity. Consequently, any one who has sex with an underage individual, regardless of the circumstances, is guilty of a crime. Narrowly concerned with sexual violence, and with girls, originally, since the 19th century the age of consent has occupied a central place in debates over the nature of childhood, adolescence, and adulthood, and been drawn into campaigns against prostitution and child marriage, struggles to achieve gender and sexual equality, and the response to teenage pregnancy. This module traces the shifting ways that the law has been defined, debated and deployed worldwide and from the Middle Ages to the present.

An age of consent statute first appeared in secular law in 1275 in England as part of the rape law. The statute, Westminster 1, made it a misdemeanor to "ravish" a "maiden within age," whether with or without her consent. The phrase "within age" was interpreted by jurist Sir Edward Coke as meaning the age of marriage, which at the time was 12 years of age.

A 1576 law making it a felony to "unlawfully and carnally know and abuse any woman child under the age of 10 years" was generally interpreted as creating more severe punishments when girls were under 10 years old while retaining the lesser punishment for acts with 10- and 11-year-old girls. Jurist Sir Matthew Hale argued that the age of consent applied to 10- and 11-year-old girls, but most of England's North American colonies adopted the younger age. A small group of Italian and German states that introduced an age of consent in the 16th century also employed 12 years.

An underage girl did not have to physically struggle and resist to the limit of her capacity in order to convince a court of her lack of consent to a sexual act, as older females did; in other words, the age of consent made it easier to prosecute a man who sexually assaulted an underage girl. However, since the age of consent applied in all circumstances, not just in physical assaults, the law also made it impossible for an underage female to consent to sexual activity. There was one exception: a man's acts with his wife, to which rape law, and hence the age of consent, did not apply.

In trials, juries were often unwilling to simply enforce the law. Rather than focusing strictly on age, they made judgments about whether the appearance and behavior of a girl fit their notions of a child and a victim. It was not only that relying solely on age seemed arbitrary to them; at least until the end of the 19th century, age had limited salience in other aspects of daily life. Laws and regulations based on age were uncommon until the 19th century, and consequently so was possession of proof of age or even knowledge of a precise date of birth.

Near the end of the 18th century, other European nations began to enact age of consent laws. The broad context for that change was the emergence of an Enlightenment concept of childhood focused on development and growth. This notion cast children as more distinct in nature from adults than previously imagined, and as particularly vulnerable to harm in the years around puberty. The French Napoleonic code provided the legal context in 1791 when it established an age of consent of 11 years. The age of consent, which applied to boys as well as girls, was increased to 13 years in 1863.

Like France, many other countries, increased the age of consent to 13 in the 19th century. Nations, such as Portugal, Spain, Denmark and the Swiss cantons, that adopted or mirrored the Napoleonic code likewise initially set the age of consent at 10-12 years and then raised it to between 13 and 16 years in the second half of the 19th century. In 1875, England raised the age to 13 years; an act of sexual intercourse with a girl younger than 13 was a felony. In the U.S., each state determined its own criminal law and age of consent ranged from 10 to 12 years of age. U.S. laws did not change in the wake of England's shift. Nor did Anglo-American law apply to boys.

Behind the inconsistency of these different laws was the lack of an obvious age to incorporate into law. Although scientists and physicians had established that menstruation and puberty occurred on average around age 14 in Europe at this time, different individuals experienced it at different ages -- a fluid situation at odds with the arbitrary line drawn by whatever age was incorporated into law.

At the end of 19th century, moral reformers drew the age of consent into campaigns against prostitution. Revelations of child prostitution were central to those campaigns, a situation that resulted, reformers argued, from men taking advantage of the innocence of girls just over the age of consent. W. T. Stead's series of articles entitled, "The Maiden Tribute of Modern Babylon," published in the Pall Mall Gazette in 1885, was the most sensational and influential of these exposés.

The outcry it provoked pushed British legislators to raise the age of consent to 16 years, and stirred reformers in the U.S, such as the Women's Christian Temperance Union, the British Empire, and Europe to push for similar legislation. By 1920, Anglo-American legislators had responded by increasing the age of consent to 16 years, and even as high as 18 years.

While those ages were well beyond the normal age of menstruation, proponents justified them on scientific grounds that psychological maturity came later than physiological maturity. They also argued that the age of consent should be aligned with other benchmarks of development, such as the age at which girls could enter into contracts and hold property rights, typically 21 years. Opponents remained focused on physiological maturity, however, and argued that girls in their teens were sufficiently developed not to need legal protection. Moreover, they argued, by late adolescence girls possessed sufficient understanding about how to use the law to blackmail unwary men.

Historians have argued that increasing the age of consent also gave the law a more pronounced regulatory dimension. In practice, these laws were often used to control the behavior of the working-class girls. Yet reformers at the time saw no distinction between protection and regulation: in making it a crime for girls to decide to have sexual intercourse outside marriage, the law protected them from themselves and from the immature understanding that led them to behaviors reformers considered immoral.

In addition to class, the intersection of race and age also gave the law a regulatory character. In India, for example, the prevalence of the custom of child marriage among Hindus led the British colonial authorities to apply the age of consent to married as well as unmarried girls, thereby creating a crime of marital rape that did not exist in British law. The 1860 Indian Penal Code set the age at 10 years; in 1891 the age of consent but not the age of marriage was raised to 12 years. As a result, the age of consent regulated the consummation of marriage, ensuring that it was delayed until an age when Indian girls were considered likely to have begun menstruating.

A furious debate preceded the enactment of the 1891 law, focused in large part on whether the law violated the commitment the British government had made in 1857 not to interfere in native cultures. That Indian law set the age lower than British law reflected ideas that non-white races "matured earlier," in part because of the environments in which they originated. In the U.S., those who opposed resetting the age of consent to 16 made similar arguments about African-Americans, Mexicans, and Italian immigrants. Australian legislators even claimed that white girls living in sub-tropical climates "ripened" into women earlier than those in Europe.

The behavior of underage girls gave support to both proponents and opponents of the increased age of consent. Increasingly living in cities and working in factories, offices and stores, working-class girls with a new freedom from the supervision of family members and neighbors cultivated a flamboyant, sexually expressive style that extended to consensual sexual activity, usually with men only a few years their elders. Their new freedom brought girls danger as well as pleasure: subordination at work and dependence on men for access to leisure, limited their agency and ability to consent, and sometimes exposed them to sexual violence. Girls involved in age of consent prosecutions came in roughly equal numbers from each of those groups.

In the 1930s, support for setting the age of consent at 16 years or older began to weaken. Characterized by growing economic, social, and cultural independence, girls in their teens assumed a place in western societies quite distinct from that of younger children. New concepts of adolescence and specifically of girlhood normalized sexual activity during the teenage years, at least within peer groups, as "sex play" necessary to achieve adult heterosexuality. Emboldened and influenced by such ideas, girls more often talked of being "in love" with the men charged with having sex with them, and expressed sexual desire. Prosecutors and juries increasingly refused to treat such cases as rape.

Legislators, however, did not reduce the legal age of consent. The resulting tension was reflected in slang, most notably the American term "jailbait," dating from the 1930s, that registered cultural recognition of teenage girls as sexually attractive, even sexually active, but legally unavailable. American legislators did amend laws to take account of the offender's age during the 1940s and 1950s as teen culture expanded and female adolescents exercised their sexual autonomy. During and after World War II, if both the male and female were underage (or between two and six years above the age of consent), the punishment was reduced.

By the 1970s, feminist rape law reform campaigns had helped to expand age of consent laws. Aiming to challenge stereotypes of female passivity and growing concern about male victimization, they made it clearer that the laws concerned all youth—male and female—and that the laws protected them from exploitation rather than ensuring their virginity. European nations in general did not follow suit. Only Britain, in 2003, revised its legislation, making an act committed by an individual under 18 with one under 16 a separate, lesser offense.

A more broadly adopted element of feminist rape law reform was the application of gender-neutral language: instead of referring to "females" the law referred to any "person." Unchanged, however, was the nature of the act addressed. Age of consent laws applied only to heterosexual intercourse. The new language criminalized acts between underage boys and women, but not those between boys and men. Promoted as a means of formalizing equality between men and women, gender-neutral language won support as a means of protecting boys. The treatment of such cases, however, was not gender neutral and drew upon gender stereotypes. In practice, boys were imagined as sexual agents, not victims, and as sexual agents, the prevailing assumption was that they would not be harmed by sexual acts with adult women.

In the U.S., the Supreme Court ruled that it was constitutional to apply the age of consent only to girls. The ruling found a new, "modern" basis for the law: the consequences of pregnancy for females. Although out of line with a broad shift toward formal legal equality between males and females, the decision fit the circumstances of the small number of cases still being prosecuted. And despite this ruling, gender-neutral laws were still enacted around the country.

This debate foreshadowed a new link between the law and teenage pregnancy in the 1990s. Conservatives seeking to control adolescent sexuality joined with welfare reform activists. They promoted claims that the enforcement of the age of consent could prevent teenage motherhood (and rising welfare costs) that resulted from girls' exploitation by adult men. Few cases actually fit that pattern, but campaigns to publicize and enforce the law on that basis were implemented in at least 10 states.

At the end of the 20th century, outside the U.S., age of consent laws were expanded to include same-sex acts, due in part to growing tolerance of homosexuality and desire to reach those at risk of AIDS. In the first half of the 20th century, all the European nations, other than Italy and Turkey, that had followed the Napoleonic code in treating heterosexual and homosexual acts alike had recriminalized homosexual acts, either establishing a total ban or an age of consent higher than that for heterosexual acts. In the last quarter of the century, arguments that boys developed later and needed to be older to appreciate the social consequences of homosexual acts began to fade.

European nations began establishing a uniform age of consent for heterosexual and homosexual acts in the 1970s. Under pressure from the European Commission on Human Rights, the former Soviet states and the United Kingdom were the last to revise their legislation at the beginning of the 21st century. In 2003, New South Wales became the final Australian state to adopt a uniform law. In that same year, a U.S. Supreme Court decision decriminalized consensual sodomy, opening the way for the invalidation of unequal laws, a process started in 2005. As of 2007, Canada, Cyprus, and the British territories of Gibraltar and Guernsey were the only western nations without a uniform age of consent for heterosexual and homosexual acts.

More than 800 years after the first recorded age of consent laws, the one constant is the lack of consistency. Laws around the world define the socially appropriate age of consent anywhere from 13 to 18. Some differentiate between heterosexual and homosexual acts while others do not. Some apply to young men as well as young women and others remained focused on the lives and actions of girls. And beyond the legislation lies the world of practice, an even more complex story.