The admirably unshockable Mary Beard, Cambridge classics professor, must have raised a few eyebrows in her TV series earlier this year when she was talking about the scandalously early (by modern standards) age of marriage in Ancient Rome. As she also put it in the Guardian:
Some girls were 12 or 13 when they married. We call it paedophilia; they called it marriage. That’s one of the exciting things about Roman culture. It’s different from ours.
Only a woman these days, and one who is also an eminent historian, could express such a view without reputational damage. What male scholar, after all, could admit to excitement in this delicate context without inviting dark suspicion?
This week she was at it again, bless her, this time on BBC Radio 4’s A Point of View, talking about the accidental, historically contingent, nature of the age of consent: 16 in Britain, 18 in many US states, but only 13 in Spain. The age of consent in Britain, she pointed out, had been 12 in early Victorian times and was raised to 16 as a result of an “inaccurate and exaggerated” campaign against child prostitution by the crusading journalist W.T. Stead. Pondering what the age of consent ought actually to be if it were to balance young people’s right to a sexual life against the need to protect children, she said there had been a government inquiry into this in the 1970s. She even recalled that the Paedophile Information Exchange (PIE) submitted its own reform proposals to the government. Imagine that now, she said: an openly paedophile organisation being part of the democratic process! How times have changed!
At that time I was Secretary of PIE but I had no hand in devising our law reform proposals, which were the work of my predecessors. So without any personal bragging I am happy to add that the great reforming Home Secretary of the day, Roy Jenkins, let slip to our mole in the Civil Service that he thought PIE’s proposals were excellent. This was the man whose earlier work included presiding over the abolition of capital punishment, the reform of divorce and abortion law to advance women’s rights, and the decriminalisation of homosexual acts between adult males. As a realist, though, he added that in political terms PIE’s ideas “haven’t got a hope in hell”.
So perhaps times were not quite as different in the 1970s as Mary would have us believe. On the other hand, they were perhaps even more different in the centuries before the age of consent was raised to 16 than she suggests. I hesitate to argue with an historian of her stature, but I am not sure her statement that the age of consent had been 12 “since the 13th century” is correct. I wonder if she is getting a bit muddled with her own special period of historical expertise? Twelve was supposed to be the Roman minimum age of marriage for girls, and that doubled as an implicit age of consent although there were many marriages at much lower ages. Also Roman law formed the basis for a lot of mediaeval law in Europe.
Googling around, I found that, in her favour, the Wikipedia entry on the Criminal Law Amendment Act 1885, which raised the age of consent to 16, has this, about an earlier Act:
Under the Offences against the Person Act 1861, the age of consent was 12 (reflecting the common law), it was a felony to have unlawful carnal knowledge of a girl under the age of 10, and it was a misdemeanour to have unlawful carnal knowledge of a girl between the ages of 10 and 12.
But was the common law age really 12 before this Act? Might it have been 10?
This view is arguably supported by the 17th century professional opinion of the English jurist Sir Matthew Hale. At a time when mere “sexual touching” was no great issue, he confined his comments to rape. He wrote: “Rape is the carnal knowledge of any woman above the age of ten years against her will, and of a woman child under the age of ten years with or against her will”. (History of the Pleas of the Crown. Hale wrote his famous treatise during the latter part of the seventeenth century, sometime before his death in 1676.)
Note that Hale talks about a “woman” over 10 years of age, but a “woman child” under 10. What he is saying here, it seems, is that there is only an offence above age 10 if there is no consent. In other words, consent is possible from 10 onwards. He also appears to be saying that a girl might be willing to have sex at less than 10 years old, but that it should count as rape anyway. This is an early version of what we now call statutory rape, isn’t it?
If we go back even further, to the 13th century, as mentioned by Mary Beard, we encounter an actual statute, not just a legal opinion. The first Statute of Westminster of 1275, included this passage:
And the King prohibiteth that none do ravish, nor take away for Force, any Maiden within Age (neither by her own Consent, nor without) nor any Wife or Maiden of full Age, nor any other Woman against her Will…
A “Maiden within Age” here appears to mean underage, as opposed to a “Wife or Maiden of full Age”. The underage maiden could not be “ravished”, even with her consent. Again, this looks “statutory rape”. Frustratingly, there is no reference to the actual age that counted in common law as being old enough to give consent. So all we have to go on is Hale’s later opinion.
Help! Legal historian needed!
I’ve been skimming through the age of consent history on the web and much of it seems to be exclusive to females. So I’m curious: in England, when was the first age of consent law for a male?
I find it fascinating that back then people thought it perfectly reasonable that under-10s could consent to sex. I wasn’t even aware that 13th Century Britain had a concept of consent.
Is there anywhere I can go to read PIE’s AoC proposal? I heard something somewhere else about it involving civil injunctions (which I’ve always thought would be a good idea for everyone) but I’ve yet to come across a copy.
“an openly paedophile organisation being part of the democratic process! How times have changed!”
And no actual children being part of the democratic process! How times have stayed the same!
Great suggestion, James. It has given me one of those “Why hasn’t this been done before?” moments, or indeed why I haven’t done it myself. I will scan the document and put it on Dropbox, probably as a single Word file. Meanwhile, I have made a start. See below for Dropbox location of the front cover and first two pages.
Just to clarify the history, the comments section of my blog included a reference to a law in the reign of Queen Elizabeth I, in 1576. This law reduced the age of consent for girls from 12 to 10 [18 Eliz., ch 7 $4 (1576)]. The law was about what would or would not count as rape of a girl. It as about penis-in-vagina sex and did not concern other sexual acts or age/gender combinations. While a girl under 10 might have been willing to have sex, this law specified she had to be at least 10 for it to be legal.
Glad to know that I’ve (unwittingly) contributed to the digitization of history. When you’re finished, would it be possible for you to get it into the IPCE archives? After all, it’s only a matter of time before Dropbox amends its ToS to crack down on your Paedophilic Propaganda.
Yes, you’re right. Actually, there’s a whole bunch of archive stuff I need to do, which has been on the back burner for years. So much to do!
James, here is the Dropbox link to Word file with PIE’s law reform proposals. The presentation is very rough and ready but at least it is readable. The reform proposals come near the end (penultimate double-page spread) after the rationale leading up to them.
“here is the Dropbox link to Word file with PIE’s law reform proposals.”
Umm… You’re missing a link….
Really? Well, that’s what happens when you’re constantly in a rush, you see! Sorry!
OK, here goes:
https://www.dropbox.com/s/2vh8ybxfi54s9da/PIE%20-%20Evidence%20to%20Home%20Office%20Criminal%20Law%20Revision%20Committee.pdf?dl=0
There, I did it! Definitely!
Yep! Just got it. Thanks.
Pure gold, Peter; a fabulous piece of information mining! Many thanks!
Well, according to Carolyn E. Cocca, Jailbait : the politics of statutory rape laws in the United States (Albany, NY, 2004), the first statutory rape law was indeed part of the Statute of Westminster I, 3 Edw, c 13 (1275), and the age of consent was 12 years then. Later it was lowered to 10 years by 18 Eliz., ch 7 $4 (1576). (10)
The relevant act was only (and is still) extramarital coitus. It is quite illuminating to consider the fact that an act which was the cause of major damage to the family of the girl, because its value as bride was reduced by the loss of the hymen, was made much less reprehensible by the fact that the girl wanted it.
(Violent acts were, of course, prohibited, if only effectively against members of the upper classes.)
Good stuff Marti.
But please don’t forget the many woman-child/child-woman consentual-‘criminal’ affairs, some non-Lez with pregnancy potential.
More than once briefly observed, woman with little girl beyond mere matronly-auntie affection.
Personal proof/disclosure came from eminent anti-domestic violence vetran campaigner Erin Pizzey (now mainstream muted – they Fear The Facts). Erin told of the most prolific case of paedophilia on her watch, which 1970s bent-Brit cops & media (1-Evil axis) would not prosecute or publicise due to ‘not in the public interest’. Two child-care/playschool lesbians sexually initiated a string of little girls. Discovered not from any complaint, but by small girls’ loose-talk, they couldn’t wait to get back for the next ‘lesson’.
Meanwhile our lesson ?
Surely in all of moral creation, barring Moses-esque ‘don’t play with fire’, early-age informed non-consent/consent matters – absolute age doesn’t.
One serious problem I see is that in the minds of most non-boylovers, sexual activity between a man and a boy consists exclusively of the insertion by the man of his penis into the anus of a young, usually unwilling boy. And the “boy” in their minds is a young child of 4 or 5 or 6 years old. The best studies I’ve seen to date indicate that most men attracted to boys wish mainly to perform oral sex on the boy – fellatio. And for boys under ages 8 or 9, mostly they wish to fondle the boy’s penis and cuddle with the boy.
Another serious problem is that fellatio is now considered an “at risk behavior” in terms of HIV transmission. The only study I’ve seen to date (I can look it up if you’d like – I posted about it at BoyChat – [shameless plug] http://boychat.org/ [/shameless plug]- is that oral sex is *not* a vector for transmission of the HIV virus. In other words, blow-jobs do NOT transmit the HIV virus that causes AIDS, and young boys can have their dicks sucked without fears of HIV infection.
The above are two common arguments often used against allowing man/boy sexual activity. I think that publicizing what is currently established regarding the above (boylovers mainly like to give blowjobs, and HIV/AIDS is NOT transmitted orally) would go far to “take the wind out of the sails” of the “antis”.
Comments?
I have always found the “Age of Consent” concept a bit strange. This is perhaps best illustrated by the inverse: trying to postulate a minimum “Age of Nonconsent.” How old does a child have to be before they can refuse to consent to, say, not being fed when they are hungry? And if they can so obviously and loudly refuse to consent to one thing, how can they, on the other hand, be said to be unable to consent to another? The argument can be made that their consent may be to something that is not in their short or long term best interest, but that does not change the fact of their consent or nonconsent. And it is someone else imposing the “best interest” shackles upon them, they rarely accepts such constraints on their own.
Something can be said that the consent of female children who are currently reaching menarche at increasingly absurd young ages needs to be regulated for the benefit of their potential offspring, and for society in general. But this same argument cannot be made for those boys whose only sexual interactions are with other males. To paraphrase Paul Wilson (1981, The man they called a monster. North Melbourne, Australia: Cassell.) “Boys see sex as nothing more than a game.” Add to that that boys’ sexual explorations with other males have no factual consequences – only societally imagined and/or inflicted ones – and the need for a minimum age of consent to boy/other male sex vanishes from reality; it continues to exist only in the shadowy realms of religion and other superstitions.
Welcome, CLovernews, to Heretic TOC. Thanks for your interest in this site and for the superb news service. As to the limitations of Mary Beard’s expressed position, you are absolutely right, but I think her message is best regarded as an interim one. It serves to take the edge off the crazy zero tolerance atmosphere without arousing counterproductive fury – as a trumpet blast for total tolerance surely would right now, especially if carried over the vulnerable BBC’s airwaves. She’s not a bad old stick. We wouldn’t want to see her burned as a witch, would we?
Though Mary Beard’s broadcast (and associated article) is interesting, I think she was being somewhat unhistorical, and certainly unphilosophical, starting with the remark, “There is not a sane person on the planet who would condone the sexual abuse or exploitation of children. But it is not so easy to decide who counts as a child.” She misses entirely the matter of what counts as abuse.
The (nearly) concluding remark, “Not [that] there is anything magical about the age of 16, but because there is no way that the law can represent the complexities of this whole area. So changing it doesn’t help things much,” is just an uncritical acceptance of the status quo,
She even appears to agree with laws that take into account age differences (in a passage missing from the broadcast): “…many countries have made careful provisions to decriminalise two young people having sex together, while making it illegal for an older person to have sex with a younger one,” though this is clearly just a matter of people wanting to stop some of their errant teenagers going to prison, while ‘protecting’ others.
I would like to think that an academic of Mary Beard’s standing could take a broader view, including looking at the present from the perspective of the past.