For the Victorians, sexual consent was certainly not a recommended or permitted age of sexual activity. Few commentators approved of sexual intercourse outside of marriage, which was expected to occur in the mids rather than at the legal age of marriage 14 for boys and 12 for girls or age of sexual consent. Overall, the rhetoric of control has ebbed in favour of a protectionist approach to sexual consent over the past century.
Some concerns about control of juvenile sexualities are, however, still evident in discussions around access to contraception and teenage pregnancies.
The most fundamental change here is that many advocate lowering the age of sexual consent in order to prevent pregnancy and disease, by providing access to sexual health services, rather than raising the age of consent to control sexual activity.
The law did not protect all children equally. The two-tier system had a long history, but the gap between misdemeanour and felony widened in the late-Victorian period. It was a compromise between those who supported and opposed raising the age of consent. They claimed that raising the age of consent would pose blackmail risks to unwitting males, especially if girls looked and acted older than their years.
However, it was broadened again in after a case law decision R v K [] 3 W. Open and honest conversations about the age of sexual consent need to take into consideration not only the need to protect children, but also how to address and remove the enduring mistrust evident within the legal system of girls who appear physically or behaviourally mature. Policy debates around the age of sexual consent have focused on three main issues: child protection; the age of expected sexual activity; and the age of maturity.
The age of maturity provides a tempting third way into this debate, as an ostensibly objective and measurable marker of capacity. However, direct comparisons between ages of puberty now and in are also deeply problematic. The history of puberty shows problems inherent within reducing sexual consent to a single factor, even a measurable one.
Puberty was also a complex and multifaceted issue, thought to be a long process with many stages and types of development, but only menarche first age of menstruation was thought to be measurable. As puberty came increasingly to be recognised as a highly varied and lengthy life stage in the nineteenth century, it became more difficult to apply puberty statistics to the two-tiered sexual consent law in any consistent way.
Campaigners often used the range and variability of female sexual maturity to their advantage when discussing the Criminal Law Amendment Act, by focusing on the puberty statistics that suited their own agendas. The idea that a falling age of puberty should lead directly to a lower age of consent over-simplifies the relationship between sexual maturity and sexual consent. While puberty has long been linked to the law on consent, this relationship has not operated in a clear or straightforward way.
Furthermore, the many problems around puberty statistics make it difficult to actually prove the extent to which the age of puberty has fallen.
Although evidence overwhelmingly points to some fall in the age of menarche, historians have disagreed over the extent of this change depending on the data sets used. To re-evaluate this law, however, it is crucial to recognise the wide range of factors that fed into this compromise. Advocating changes to sexual consent law on the basis of changes to the average age of puberty is problematic, not least in implicitly assuming statistics to be more objective than other decision-making factors.
Many of the original decision-making factors are no longer relevant in our society, but these differences are important in themselves; change over time in social, legal and medical ideas about childhood, sex and sexuality necessitates a re-evaluation of sexual consent law. Overall, the history of the law indicates that some of our discussions today around the law on sexual consent could be productively reframed.
A history of the Criminal Law Amendment Act cannot tell us what the age of consent should be. However, it shows us that the meaning and purpose of sexual consent law change over time and that direct comparisons with the past need to be conducted with care. It is also simplistic to argue for an increase or decrease in the age of consent on the basis of single factors, such as the age of puberty or expected sexual activity.
Direct comparisons with a year-old society and legal system — whether to promote or reject reform — are inappropriate, as is the idea that a law embedded in Victorian concerns and values can respond adequately to those of our own society. 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.
The outcry it provoked pushed British legislators to raise the age of consent to 16 years, and stirred reformers in the U. By , 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 Indian Penal Code set the age at 10 years; in 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 law, focused in large part on whether the law violated the commitment the British government had made in 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. 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 s, 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 s, 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 s and s 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.
And it might give us a way to protect the most vulnerable among us without robbing them of their agency, their individuality, and their ability to seek support when they find themselves in potentially abusive situations. Granted, some might argue that this sort of strategy is naive and ill-equipped to handle the worst sorts of predators: the men like Jeffrey Epstein who use their money and power to habitually prey on the most vulnerable victims they can find.
Even without laws on age of consent, we already have the mechanisms to protect the victims of abuse and violence, whatever age they may be. We just need to employ them. Already a subscriber? Log in or link your magazine subscription. Account Profile. Sign Out. Photo: United Artists. Tags: power age of consent the epstein case sex crime best of the cut More.
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