The legacy of 1885: girls and the age of sexual consent
Author: Victoria Bates
Date: 2015-09-10T23:00:00+00:00
Keywords: Local government and services
Description: The age of sexual consent - 16 years - has remained since 1885 despite concerns today regarding child sexual abuse and teenage pregnancy. Dr Victoria Bates warns against drawing direct comparisons with this 130-year-old law to promote or resist change to the age of consent.
Publisher: History and Policy (historyandpolicy.org)
Rights: Copyright History & Policy, 2015

The legacy of 1885: girls and the age of sexual consent by Victoria Bates.

Published in Great Britain in 2015 by History and Policy.

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Policy Papers

The legacy of 1885: girls and the age of sexual consent

Victoria Bates

CONTENTS

- TITLE PAGE
- COPYRIGHT
- POLICY PAPER
- FUTHER READING

Policy Papers

The legacy of 1885: girls and the age of sexual consent

Victoria Bates

Executive Summary

- Periodically, the age of sexual consent comes under scrutiny from policy makers, though the sensitive nature of this topic makes it extremely controversial.

- The age of consent – as decided in 1885 – remains essentially in place for girls at 16 years, despite its lack of relevance to contemporary concerns such as ‘child sexual abuse’ and teenage pregnancy.

- An understanding of how and why the 1885 Criminal Law Amendment Act came about is a crucial basis for any discussion about changing it. The decision to raise the age of consent to 16 in 1885, with higher penalties for offences against girls under the age of 13, resulted from the combination of a child protection agenda and a perceived need to control juvenile sexualities.

- The history of sexual consent law does not reveal whether the age of consent should be increased or lowered, but shows the problems of drawing direct comparisons with a 130-year-old law in order to promote or resist change.

- Links between the age of sexual consent and expected sexual activity are a relatively recent phenomenon.

- A fall in the average age of puberty cannot be taken as a clear-cut indicator of the need to decrease the age of sexual consent.

- There is a need to challenge the legacy of victim-blaming, which stems in part from Victorian concerns about girls who matured early or were sexually ‘precocious.

Introduction

In July 2014 the Guardian cited a Home Office report that recommended lowering the age of consent in line with lower ages of puberty. The report suggested that ‘sexual behaviour with a girl over the age of 13 (the average age of puberty) is not criminal, provided that she was clearly as aware of what she was doing and its implication as might be expected of a girl of 16’. Although this report - Sexual Offences, Consent and Sentencing – was written in 1979, and is bound up with number of concerns about the influence of Paedophile Information Exchange (PIE) at this time, the idea that a lower age of puberty should lead to changes in sexual consent law still lingers.

Human rights campaigner Peter Tatchell recently called in The Huffington Post for a re-examination of the consent question, arguing that ‘[t]he existing consent at 16 law was introduced over 100 years ago in a puritanical Victorian era. Since then, society has moved on to more informed and enlightened attitudes about sex. Most importantly, the average age of puberty and sexual arousal has fallen dramatically to around ten to 11. In the light of new evidence, the issue should be revisited and re-examined.’

Tatchell’s article raises some important points about the difficulties of having ‘thoughtful, measured’ conversations about sexual consent legislation. The sensitive nature of this topic often results in accusations of facilitating ‘child sexual abuse’ if ages are recommended to be lowered; on the other hand, those who recommend maintaining or increasing the age of consent are often accused of being unrealistic about the ages at which girls and boys engage in sexual activity. Despite interventions in the debate on the age of sexual consent by the president of the Faculty of Public Health, who called for a discussion about the possibility of lowering the age of consent to facilitate access to health services, the government has declined to engage in any public discussion about the issue. In the wake of recent historic sexual abuse revelations (particularly the high-profile Operation Yewtree), which have fuelled concerns about a failure to protect the young, the age of consent is a particularly emotive political and social question.

The history of sexual consent legislation can provide one way into a measured discussion on this emotionally-charged issue. The age of sexual consent was set at 16 for females in 1885 – with a higher penalty for offences against girls under the age of 13 – and has remained largely unchanged for heterosexual acts ever since, despite the social and biological shifts that have occurred in the 130-year interim. This policy paper focuses on the 1885 law as, despite some important subsequent changes to balance the gender dimensions of this law and the addition of new legal clauses to clarify ‘consent’, the age of female consent and the two-tier system remain in place.

This policy paper does not advocate either a raising or lowering of the age of sexual consent, but argues that an understanding of how and why the 1885 law came about is a crucial basis for any discussion about changing it. Overall, it demonstrates that policy makers cannot draw simplistic comparisons with the past when advocating or resisting change. Many of the factors that shaped sexual consent law in 1885 are no longer social concerns, while new ones (such as teenage pregnancy and ‘paedophilia’) have become priorities. An open conversation is necessary in order to acknowledge these changes and to decide which parts of the old law remain fit for purpose in a changing society.

The age of consent in history

In 2013 the Prime Minister David Cameron rejected calls to lower the age of sexual consent with no public debate, claiming that the age of 16 was in place to protect children. The emphasis on protection has long been common amongst those seeking to maintain or raise the age of sexual consent. Those who have called to lower the age of sexual consent have focused instead on the declining age of puberty or the ‘real’ age at which girls and boys engage in ostensibly consensual sexual acts with their peers. Despite often being pitted against each other, these different perspectives are not mutually exclusive. Instead, they are embedded in distinct understandings of sexual consent law and its purpose. So, historically, what has been the perceived purpose of the female age of consent? Over time the perceived purpose of sexual consent legislation has changed. These shifts, and differences between the past and present meaning of ‘sexual consent’, need to be acknowledged within any discussion of changing the law. Policy makers will not be able to move forward unless they stop making direct comparisons with the 1885 law without acknowledging its fundamentally different purpose.

In Roman law and canon law the age of female consent was aligned with female marriage and with puberty (particularly the ability to reproduce). Maturity and marriage was expected to occur from the age of 12 for females, although in its early incarnations the legal age of consent was flexible in line with marital arrangements. Consent in itself was not the focus of these laws, in which a man’s right to take a girl’s chastity – ideally, but not necessarily, with her consent – came with marriage. The thirteenth-century Statutes of Westminster consolidated in law that sexual intercourse with a girl ‘within age’ – taken to mean under the marital age of 12 – was illegal with or without her consent. In 1576 a new law made sexual intercourse with girls under the age of 10 a felony while leaving offences against girls aged 10-12 as a misdemeanour. This act implicitly created a two-tiered system, in which the highest sentences were reserved for offences against the youngest girls.

By the nineteenth century the average age of marriage had risen to the mid-20s, while changing conceptions of childhood also meant that the ‘child’ was defined increasingly in social and economic terms as well as in relation to maturity and marital status. Reform to age of consent law in the nineteenth century was bound up with these changing ideas about childhood and, for the first time, framed in child protection terms. However, Victorian lawmakers were also extremely concerned about disorder (including disorderly sexualities). In the absence of a direct transition from childhood to marriage, the age of consent also constituted a form of control over female chastity at an apparently dangerous life stage. Overall, the links between sexual consent, marriage and puberty – which formed the basis of early laws – weakened over time.

Protecting girls or controlling them?

The meaning of sexual consent changed in line with social shifts. Victorian legal changes reflected a number of contemporary – sometimes contradictory – concerns with: child welfare, working-class disorder and sexual immorality. The age of consent was changed for the first time in the nineteenth century in 1875, when the felony clause was raised from 10 to 12 and the misdemeanour clause from 12 to 13. It was in 1885, however, that the most significant change took place in the wake of a newspaper exposé of the so-called ‘White Slave Trade’ in young girls. A public interest in child protection drove the passage of the 1885 Criminal Law Amendment Act, but its finer details were concerned as much with control as protection. The law, which set the felony age at 13 and misdemeanour age at 16, reflected a particular late-Victorian conflict between the promotion of child protection and a perceived need to regulate juvenile sexualities.

In 1885 the focus of lawmakers was firmly on the question of female capacity, in two forms: the capacity to consent and the capacity to control emergent sexualities. Giving consent was thought too much of a responsibility for girls before they had adequate mental maturity, which apparently came later than physical development. Before full maturity – physical and mental – girls were thought to need protection not only from men, but also from their own new and disorderly sexual feelings. This question of ‘capacity’ was a double-edged one: it complemented a child protection agenda, but also supported those who feared that girls (especially working-class girls) would ‘fall’ early and should not be given the opportunity to do so. This balance between protection and control ran throughout much Victorian legislation.

It would be a mistake to assume that our current focus on child protection has always underpinned sexual consent legislation. Indeed, even within the last 50 years policy makers have flitted between advocating the relaxation of sexual consent law to allow healthy sexual relationships between consenting teenagers and tightening it to protect children. While the focus is now primarily on the latter, there are still multiple stances on this issue. There were some campaigns to lower the age of sexual consent in the 1970s, particularly between consenting youths, but revelations about the extent of ‘child sexual abuse’ limited the influence of such discussions.

Sexual consent law has recently focused not only on protection, but on protection from a specific type of offender. ‘Child sexual abuse’ is an umbrella term of the late-twentieth century that has specific connotations, associated with types of abuse such as incest and ‘paedophilia’ that the Victorians did not understand in the same way. At a basic level, changes in the understanding of ‘child sexual abuse’ and ‘paedophilia’ since 1885 mean that the protection side of ‘sexual consent’ law now relates to a different type of threat. New types of sexual offence have been written into law recently, in response to this protection agenda. In 2000 and 2003 respectively UK law recognised ‘abuse of a position of trust’ (with an age of consent at 18) and ‘sexual grooming’ as factors contributing to sexual consent.

While ‘child protection’ has implicitly become an increasing focus of sexual consent laws, concerns about sex between consenting teenagers have relaxed over the last century. In consequence the UK made sexual intercourse between men under the age of 18 and girls under the age of 16 a distinct – and lesser – offence in 2003. The purpose of sexual consent law has shifted away from regulating juvenile sexualities and towards preventing exploitation. It is crucial to have an open and informed debate about whether the age of consent, which remains essentially unchanged despite the addition of new offences around it, remains fit for purpose.

There is also a fundamental difference, between the nineteenth century and the current day, in the perceived implications of the law for those over the age of consent. Sexual consent is now understood by many – although not all – as a marker of when girls (and boys) are ‘allowed’ or likely to have sexual intercourse as much as a signifier of their capacity to consent. For the Victorians, sexual consent was certainly not a recommended or permitted age of sexual activity. The 1885 law on sexual consent meant, to cite the 1908 Royal Commissioners on the Care and Control of the Feeble-Minded, that ‘[t]he power of consenting to unlawful defilement … has been taken from girls under sixteen’. This wording is significant: the right to consent was ‘taken away’ from girls under the age of consent, rather than given to those above it. Few commentators approved of sexual intercourse outside of marriage, which was expected to occur in the mid-20s 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. These discussions acknowledge that consensual sexual acts may take place, albeit while seeking ‘damage limitation’, but the Victorian sexual consent law aimed to prevent any uncontrolled sexual activity.

Policy makers need to recognise that the social landscape and the implications of sexual consent law have changed; the 130-year-old consent law is not framed in the most helpful way to address today’s challenges. They also need to recognise that claims about the law’s historical and continued grounding in ‘child protection’ – a claim most recently used to reject any need for reform – are only partially true.

Why 13 and 16?

The 1885 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. The law also introduced new clauses that limited the legal protection given to so-called ‘precocious’ girls who reached maturity early. It was a compromise between those who supported and opposed raising the age of consent. Women’s rights campaigners such as Josephine Butler had pushed for a higher age of consent, of 18 or even 21, on the basis that some girls were still ‘children’ in mind before these ages. Those who argued for maintaining the existing sexual consent age of 13, however, argued that many girls of the ‘lower’ classes were not ‘childlike’. 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.

The Criminal Law Amendment Act limited opportunities for blackmail by ‘precocious’ girls by incorporating a clause that exonerated men of any age who had ‘reasonable cause’ to believe that a girl aged 13-15 was over the age of 16; any girl who looked older than her age was therefore not automatically protected by the law. This decision was based on comments such as those made by Sir Thomas Chambers in 1885, who emphasised that sexual consent law should be grounded in ‘fairness to both sides’ and that ‘it might be that a girl of 13 looked much older than she was; it might be that she was not the seduced but the seducer’. The ‘reasonable belief’ clause was restricted to cases involving first offences by men under the age of 24 in 1922. However, it was broadened again in 2003 after a 2001 case law decision (R v K [2001] 3 W.L.R. 471 HL) found that a 26-year-old defendant could be acquitted of an offence against a 14-year-old girl when he had an ‘honest belief’ she was over the age of 16.

Concerns about precocious behaviour, irrespective of a girl’s appearance, also have a social and cultural legacy that needs to be addressed. Newspapers are full of reports of cases in which the courts present girls as complicit in sexual abuse: in 2013, for example, there was uproar when a Crown Prosecution Service barrister described a 13-year-old girl as ‘predatory’. Such comments are now barely acceptable, but indicate that the idea of ‘precocious’ girls still lingers. 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.

Are girls maturing earlier?

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. There is limited truth in claims about the grounding of sexual consent law in ‘child protection’, and the 1885 law paid no attention to the expected age of sexual activity. 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 1885 are also deeply problematic. The history of puberty shows problems inherent within reducing sexual consent to a single factor, even a measurable one.

Puberty carried some weight within Victorian politics as a ‘scientific’ marker of maturity, in much the same way as it does today. However, in 1885 statistics on puberty were certainly not simple or ‘objective’ and were picked up selectively by campaigners, in order to support (rather than necessarily to inform) cases for a reduced or increased age of sexual consent. Those who wanted to maintain the age of sexual consent cited evidence that puberty commonly occurred early or ‘precociously’, while those wanting to push it up emphasised that mental maturity came much later than 16 even for the ‘normal’ girl. 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. However, even statistical studies of menarche highlighted the variability of ‘normal’ bodies. The ‘normal’ range of menarche was found to be 12–18 and differed according to class, race and possibly climate. 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 1885 Criminal Law Amendment Act, by focusing on the puberty statistics that suited their own agendas. Debates within leading medical journals on the proposed legal changes in 1885, for example, included: ‘[w]hy not recognise at once the physiological immaturity of the girl up to the age of 18, and, if possible, beyond it, namely, that of 21?’ (M. J. Hastings Stewart in the British Medical Journal); ‘judging from the physiological facts, the girls [of fifteen] who have attained to the physical maturity of boys from seventeen to nineteen years of age and to the functional maturity of womanhood will probably prove very troublesome wards of the state’ (Charles Roberts in The Lancet); and ‘[i]n asking that the age of sixteen should be the limit of the misdemeanour clause nothing can be more just, since it would be affording the protection of the law to many immature girls whose consent could only be given in sheer ignorance of what they were doing’ (Frederick Lowndes in The Lancet). The application of puberty statistics to the age of consent depended upon whether these writers focused on body or mind, ‘norms’ or outliers, and absolute or relative measurements.

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. Instead, statistical studies made the relationship more difficult by showing the variability of ‘normal’ puberty. 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. Any claims about a fall in menarche of ‘X years’ since the 1885 law must be approached with care, and such statistics must not be used uncritically to promote legislative change.

Conclusions

Historians often describe the 1885 Criminal Law Amendment Act as a ‘compromise’ between those who wanted a higher and lower age of consent. 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. Those who focus on ages of first ‘consensual’ sexual activity overlook the absence of these questions in the initial framing of the law, while the ‘protection’ discourse ignores the extent to which Victorian sexual consent law was also about ‘control’. 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 1885 law indicates that some of our discussions today around the law on sexual consent could be productively reframed. Discussions about the age of sexual consent need to be grounded in questions – albeit difficult and emotive ones – about the shifting meanings of ‘sexual consent’ over time, the historic legacy of victim-blaming around ‘precocity’, and whether a two-tiered system of sexual consent responds adequately to changing knowledge about the range of ‘normal’ sexual experiences and sexual maturity.

A history of the 1885 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. Those policy makers who claim that the age of consent does not need re-examining because of its roots in ‘child protection’ overlook that the 1885 law was shaped in part by a desire to control the young. 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 130-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. Ideas about age, sex and sexuality change with society, and policy makers need to acknowledge these differences in order to move forward.

About the author

Victoria Bates is Lecturer in Modern History at the University of Bristol. She has research interests in the social history of medicine in modern Britain. Her primary research to date has been on Victorian and Edwardian sexual forensics, on medicine in late-twentieth century popular culture and on the 'humanisation' of healthcare and medical education. She is the author of Sexual Forensics in Victorian and Edwardian Britain (in press: Palgrave Macmillan, 2015).

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Further Reading

- Bullough, Vern, ‘Age at Menarche: A Misunderstanding’, Science 213 (1981), 365-366.

- Gorham, Deborah, ‘The “Maiden Tribute of Modern Babylon” Re-examined: Child Prostitution and the Idea of Childhood in Late-Victorian England’, Victorian Studies 21 (1978), 353-79.

- Jackson, Louise A., Child Sexual Abuse in Victorian England (London: Routledge, 2000).

- Robertson, Stephen, ‘Age of Consent Laws’ in Children and Youth in History: Item #230 <http://chnm.gmu.edu/cyh/teaching-modules/230> (accessed 23 July 2015).

- Walkowitz, Judith, City of Dreadful Delight: Narratives of Sexual Danger in Late Victorian London (London: Virago Press, 1992).