A History of Homoerotica by Rictor Norton

The Age of Consent in 18th-century England

My comments below relate to English law in the 18th century, though these standards were true for most of the 19th century as well. These "ages of consent" were fairly common across Europe, and in the United States.

The age of consent for girls with regard to sexual intercourse was 10 – that is, sex with a girl below the age of 10 was automatically classified as rape, because girls below the age of 10 were deemed to be legally incapable of consent. The age of consent for girls with regard to marriage was 12 – that is, a girl under the age of 12 could not lawfully consent to marriage.

The age of consent for boys was 14. Specifically, (1) it was not lawful for boys below the age of 14 to get married; and (2) boys below the age of 14 could not be prosecuted for sodomy, or, I think, for rape. Also, children (whether boys or girls) below the age of 14 were not supposed to be prosecuted for murder (a capital felony), but there were some exceptions.

For an adult, sodomy was illegal in all cases, regardless of the age of the partner and regardless of the consent of the partner. That is, it is not possible to have an "age of consent" for homosexual relations.

The age of consent for girls was designed to protect girls from sexual molestation or exploitation, but the age of consent for boys was designed to protect boys from sexual prosecution, not to protect boys from sexual molestation. I don't think there are any cases involving heterosexual molestation, i.e. the rape of boys by women, which is not deemed to be conceivable. The law against buggery already protected them against male sexual molestation.

The "age of consent" essentially constitutes the age of legal liability. Modern historians and sex-law reformers usually anachronistically use the concept in the context of the legal liability of the older person rather than the legal liability of the younger person whose age is being considered. Certainly within the field of homosexual relations, today the "age of consent" is used to determine whether or not the older partner can be prosecuted, whereas in the past it was used solely to determine whether or not the younger partner could be prosecuted.

There are probably exceptions to these rules. There is some ambiguity in some trials as to whether "14 years old" means having attained one's 14th birthday, or just being in one's 14th year after passing one's 13th birthday. Ditto for the concept of "12 years old". But I don't think this ambiguity arose in cases involving children "10 years old", because all or virtually all such cases brought to the attention of the court involved force or violence in any event, and would have been deemed rape regardless of age.

(I think that in general, throughout the century there was some ambiguity when mentioning the age of persons, i.e. whether a person's age expressed in years relates to the period before or the period after a certain birthday.)

The age of consent has steadily crept upward, while the age of puberty has crept downward, which demonstrates that the concept is a legal construct having no biological basis.

The legal history, though very complicated, can be summarized: the age of consent for girls was 12 in the 13th century, but was lowered to 10 in 1576, and remained there until it was raised to 12 in 1861, then to 13 in 1875, and then to 16 in 1885. One could enter into a Common Law marriage at the age of 12.

Regarding boys, Blackstone in his Commentaries on the Laws of England (IV, chap. 15, section 3) summarizes the position: "A male infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies *malitia supplet aetatem*, as has in some cases been shewn; yet, as to this particular species of felony, the law supposes an imbecillity of body as well as mind."

On the subject of the age of 14 for boys, Randolph Trumbach in Sex and the Gender Revolution (Vol. 1, p. 59) says "In the eighteenth century, [the age of puberty for boys] would have been around fifteen years of age. At that age aristocratic boys were often taken away from school because puberty had begun. One mother referred to her fifteen-year-old son as being at 'his dangerous time of life.' Schoolmasters agreed; and William Gilpin, for instance, was inclined to refuse to educate such boys, after they had come to what he called 'the age of right and wrong.' Fifteen was also the age at which many boys started to run after whores. Because of these considerations, lawyers declared fourteen to be the age of sexual consent for boys" (and he cites some sources).

Although today we use the term "age of consent" to refer to the age at which one can legally consent to sex, until recent times the term refered to the age at which one can consent to marriage, i.e. the age at which a contract of marriage can be legally entered into.

This is because, until recent times, sex outside of marriage was an offence in all circumstances regardless of age, so it would have been inconceivable that any law would legitimize an age at which non-marital sex could be engaged in. It's only in recent times that sex outside of marriage would be implicitly sanctioned by law, and I'm not sure it was specifically sanctioned even in the late 19th century. I believe that the term "consent" was still the term used in marital law, and that law governing non-marital sex logically pegged the age at the same age for legal marriage. The point I'm making is that "consent" still continued to be linked to marital legislation even though it also came to be used in non-marital sex legislation. For most historical periods, age of consent legislation has been part of marital regulation rather than sexual regulation, and our discussion of it as simply a matter of sexual regulation is historically anachronistic.

Of course marriage entails conjugal duties and exists for the purpose of procreation (according to most legal and religious discourse), so this age was tied to the age at which conception/impregnation became possible (basically, the age at which menstruation or ejaculation occurs: the ages at which a girl becomes a woman and a boy becomes a man), plus about a year to confirm that "maturity" status.

The age at which one can legally consent to marriage was usually very close to the age at which one assumed adult responsibilities, i.e. could be held responsible in a court of law for one's own actions. You could reasonably call this an implicit age of "sexual autonomy", though people wouldn't have used that phrase: indeed I don't think many people would use those terms even today! I don't think that "sexual majority" would be construed as a concept separate from "majority" tout court, until quite recent times. "Majority" of course is a bit hard to pin down anyway, because there are different ages at which you could sign a financial contract (or not at all if you were a woman!), and different ages at which you could be prosecuted for a felony or a misdemeanour, different ages for voting, different ages for entering military service, etc.

In eighteenth-century Scotland, if a 12-year-old woman and a 14-year-old man agreed to marry and then had sex, they were considered to be legally married and did not require either parental consent, or the calling of the banns, or a marriage licence – they had achieved the age of consent. Within this historical context it is quite proper to call a 12-year-old female a "woman" rather than a girl, and a 14-year-old male a "man" rather than a boy, and I don't think that 12/14-year-old persons were always called "children" in the documents of that period. Marital regulations were tighter in England after the mid-1770s, though I don't know the exact details of the legislation history. The age of consent was slowly raised in British legislation (and thus came to be no longer clearly linked to menstruation/ejaculation), but it remained very young by modern standards.

Age of consent legislation from a historical point of view was empowering legislation rather than limiting legislation. That is, the age of consent was the age at which one could no longer be prevented from getting married (or, by extension, having sex). Since the late 19th century the discourse has been dominated by theories of protection, due almost entirely to the exploitation of very young females in the prostitution market (including enforced prostitution of children). If older men had sex with young girls and married them, I don't think a need for legislation would have been felt, but they were of course having sex with them and then abandoning them – and their offspring. Even today the most pressing social problem (and the main justification for legislation) is the poverty trap for 12-year-old unmarried mothers and their children, rather than individual traumas of "sexual abuse" per se. But 15/16/17-year-old gay men rightly point out that such laws criminalize rather than protect them.

Postmodern "Critical Theorists" have sometimes taken the view that prohibiting sexual relations with children has more to do with the protection of patriarchal rights (children as the property of their father, laws of inheritance etc.) than with the actual protection of children. But I really don't think that the patriarchy paradigm accurately captures the historical reality. For instance, throughout the 18th century in England there were scores and scores of prosecutions for the sexual abuse of children, and the evidence of the trial records does not support this patrarchal theory. The sexual abuse of boys has no effect (short of murder) on the line of succession and inheritance, and in that sense is irrelevant to this patriarchal analysis. More importantly, most of the cases, for abused girls as well as boys, involve children whose families are in the very lower social classes, children who actually are not going to inherit anything, and families for whom the idea of "a line of succession" is nonexistent because there was no material wealth or wealth-producing reputation to pass on, so this also does not support the patriarchal paradigm.

Lastly, and perhaps most interestingly and importantly, in virtually all cases the prosecutions were initiated by the mothers rather than the fathers of the abused children. The fathers in most cases were disinclined to prosecute, partly because they just didn't think it was worth stirring up trouble or going to the expense of prosecution. They don't seem to have perceived abuse of their children as an attack on their male honour etc. The motivation for condemning sexual abuse of children really was the sexual shame and more specifically outrage of the mother, not fear of offending patriarchal rules, by either mother or father. I think it would also be wrong to try to twist this into a claim that the mother was prosecuting in order to uphold the patriarchal honour of her husband, because the documentary evidence shows a clear moral revulsion about the experience of the child, not the reputation of the patriarchy. Publication of such cases in the newspapers produced many shocked reactions, linked to emotional outrage and use of terms such as "sickening", and I think these expressed genuine abhorrence rather than having anything to do with the ideology of patriarchy.

One has to acknowledge, however, that in trials for the rape of young girls, which were quite frequent, the accuser was often acquitted, unless serious physical damage to the girl was self-evident. Juries were reluctant to rely solely on the evidence of young children in the absence of witnesses, especially as conviction could easily result in the death penalty. I know that some social historians claim that a low rate of conviction establishes "the attitudes of society", but I feel that a high rate of prosecution provides a surer guideline to "the attitudes of society". The men who were acquitted usually left their jobs and moved out of the community where the incident occurred, so they lost status in the community.

In sum, the patriarchal paradigm is simplistic and inadequate. If you broaden the issue to abuse in general, rather than just sexual abuse specifically, you will be confronted by the fact that children are physically abused more frequently by women than by men. They are also murdered more frequently by women than by men. In patriarchal societies, families are in fact matrilocal (while also being patrilineal). The dominant figure is the older woman, which is why popular culture is so full of stories about mothers-in-law. This is not just a literary stereotype. In the South Asian immigrant community in London today, women are certainly oppressed by such things as enforced marriage, but when you examine the high number of cases of wife beating in this culture, you will regularly find that these same wives are regularly physically abused by their mothers-in-law. This is because the mother-in-law is trying to control her son's wife in the same way that she is used to controlling her own daughters, because back home in the original culture she was the head of the family. If we're going to use grand paradigms to understand this, we will recognise that the child/wife victim of physical abuse is the victim of the conflict between matriarchal and patriarchal forces, not the victim of patriarchy alone.

My comments about the sexual abuse of children in 18th century England are impressions formed while reading trials and newspaper accounts in search of information about the criminal underworld, so the information hasn't been systematically gathered and I've jotted down notes of only some of the material because that wasn't my primary interest. However, I should perhaps flesh out what I've said, even though it amounts to a scattering of observations rather than anything statistical. Here is a brief summary, for example, of 24 prosecutions of rape from 1720 to 1731:

  • In 1720 M— L— was charged with raping a servant of unknown age and was acquitted.
  • In 1721 John Weston, for raping a 13-year-old girl, was acquitted; Christopher Krafft for raping a 12-year-old girl was sentenced to death, but pardoned; James Booty for raping a 5-year-old girl was hanged.
  • In 1722 Edward Fox for raping a 10-year-old girl was acquitted.
  • In 1723 Charles Maccarty for raping a 10-year-old girl was acquitted; H— J— for raping a "Spinster" of unknown age was acquitted; Gerard Bourn for raping a 10-year-old girl was acquitted.
  • In 1725 Robert Lander raped a 16-year-old girl and was fined 10 marks; Samuel Street raped a 17-year-old girl and was fined 20 marks and imprisoned for 6 months; and three men, John Alloway, John Pritchard, and John Simmons charged with raping young girls of unknown age were acquitted.
  • In 1726 Adam White charged with sodomizing his 11-year-old daughter Mary was acquitted.
  • For the remainder of that decade, 10 men were charged with raping young girls of unspecified ages and were acquitted, 1 was whipped and imprisoned for 1 year, and 1 was sentenced to death.

Most of my research is into primary sources. But a good secondary source is Antony E. Simpson, "Vulnerability and the age of female consent", in Sexual underworlds of the Enlightenment (Manchester University Press, 1987), pp. 181–205, which shows that from 1730 to 1830 there were 294 prosecutions for (heterosexual) rape in the Old Bailey; a guilty verdict was given in only 51 of these cases (17%), and 28 of the offenders were executed; 57 of the cases involved girls under the age of 10 years, and 10 of these offenders were found guilty. The age of 10 years was legally regarded as the age of consent or age of sexual discretion for females, two years below the age at which a girl could marry.

It's difficult to get accurate data about exact ages. Very often the age is unspecified, but can be inferred by circumstances such as the girl still living with her parents and not going out to service, or by the terms used in the account or newspaper reports. For example, in Worcester, in July 1726 a fellow stood in the pillory for attempting "to commit a Rape upon a Girl", and after being set free "attempted to ravish a young Woman in the Fields" (and also tried to rip her private parts); this latter female had previously had a miscarriage so of course was not a child. His behaviour was deemed "inhuman" and he was thrown into irons. (Weekly Journal, or the British Gazetteer, 23 July 1726). I mention this case because it seems to suggest that contemporary newspapers reserved the word "Girl" for someone prepubertal or just around puberty, and the term "young Woman" for someone sexually mature.

In Portsmouth in October 1727 two Dragoons were committed to gaol for raping "a couple of young girls". One of them must have been very young, because the Dragoon could not enter her and was just about to use a knife to enlarge her vaginal slit when he was captured and prevented. (British Journal, 21 October 1727).

When the age is specified, it is usually the age of 10 or "under 10". This is because, as Sir John Gonson reminded the Grand Jury when he addressed them at the beginning of the Sessions in July 1728, "To lie with any woman child under ten years old, tho' with her consent, is felony." The newspaper reports almost all follow the same pattern as this brief report in the Daily Gazetteer in November 1744: "This Day the Six following Malefactors are to be Executed at Tyburn; [. . .] And Francis Moulcer, for Ravishing Anne Bishop, an Infant under Ten Years of Age."

Cases involving girls vastly outnumber cases involving boys. (By "girls" and "boys" I mean persons under the age of 12/13.) Whole years would pass without there being a single homosexual prosecution, whereas in every quarterly Sessions there were two or three cases involving the rape of girls (and many more cases involving the rape of young women). I think there were fewer than 20 prosecutions involving the abuse of boys (age 12/13 or under) throughout the century. A typical case, involving serious abuse, was that of Isaac Broderick, an eminent schoolmaster, who regularly had sex with the young boys in his school (sex between their thighs rather than sodomy per se. He also spanked them and caressed their buttocks). Half of dozen of the boys, all aged 10 or 11, were questioned in court and their testimony was believed. Broderick was sentenced to stand in the pillory, 3 months' imprisonment and a fine. The evidence is very interesting in showing how everyone in the boys' families, notably women and grandparents, were involved and their feelings of outrage. I reproduce the trial on my website.

If you include boys around the age of 15 or so, the number of cases is perhaps tripled. Delivery boys (around age 15) were often picked up by men; probably many delivery boys were not averse to earning a little pocket money or getting a meal by offering themselves to men. A fairly typical example in the non-consensual category is that of Charles Banner, a schoolteacher who in March 1723 picked up a 15-year-old postboy and built up familiarity with him over a period of several days before molesting him. He was acquitted. I reproduce the trial on my website.

I think that in most of the cases involving boys aged 13 or under, the offender was a schoolmaster. The boys aged 15 or so were mainly delivery boys or apprentices, and their assailants were encountered by way of their occupations. For example, in 1730 Gilbert Laurence, a gilder, was hanged for raping his 14-year-old boy apprentice in 1730 (and badly damaging his anus). I reproduce the trial on my website.

Another typical case involving boys around age 15, which I find rather amusing, involved General Sir Eyre Coote, who in 1816 was in the habit of visiting the Mathematical School of Christ's Hospital and flogging – and being flogged by – the 14- to 17-year-old scholars. One of the boys said "he asked if we would let him flog us, and he would give us so much money – . . . I consented – he said he would give me 1s. 6d. for six stripes – I let down my breeches, and he flogged me – after he flogged me, he flogged another boy . . . and he asked if we would flog him . . . he pulled down his breeches when the boys had flogged him – the Nurse came in just as he was pulling up his breeches." Another boy was given two shillings for eight stripes with the cane: "I stood by the side of the table, and he gave me four – he then put his hand and lifted me on the table, put his hand between my legs – my breeches were down – after he gave me the other four, he called me to the fire, and asked if he had made any mark; he put his hand between my legs, put me across his knee, gave me two slaps on the backside with his bare hand." In due course Sir Eyre Coote pulled down his own breeches and was flogged in turn by the willing boys.

At the first enquiry into the affair, Coote claimed temporary insanity and then fled the country. A tremendous scandal broke. The Duke of York (Commander in Chief) ordered a fresh enquiry, and Coote was asked not to appear in Parliament. The report noted that Coote's repeated visits to the school were under assumed names; this and his prudent effort to avoid disclosure, were at variance with his supposed temporary insanity. Coote was not seen again, but was represented by his lawyers. At a third enquiry they presented petitions signed by numerous Members of Parliament, Peers and gentlemen, confirming that Coote was mentally deranged rather than guilty of any criminal intentions. No legal proceedings were instituted, though he was officially disgraced and stripped of his military honours. (Source: A Plain Statement of Facts, relative to Sir Eyre Coote (London, 1816).

Copyright © 2014 Rictor Norton. All rights reserved. Reproduction for sale or profit prohibited. Some of my comments originally appeared on the 18th Century Interdisciplinary Discussion List and on the History of Sexuality Discussion List.

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