It is an interesting read for those who may not know the history of the age of consent. Below I'll quote the title, abstract, and more relevant quotes. Feel free to criticise it. I personally have my own critiques, which I'll cover in the reply to the main post.
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MARTIN KILLIAS
THE EMERGENCE OF A NEW TABOO: THE DESEXUALISATION OF YOUTH IN WESTERN SOCIETIES SINCE 1800*
ABSTRACT.
Sexual abuse of children and minors is, nowadays, regularly highlighted in the media. As such, it became an offence, however, only during the nineteenth century, along with the development of a particular, child-like social role of juveniles. Before 1800, adolescents were less excluded from adult life including marriage and procreation. Sexual activities were also generally criminalised outside marriage. Statutes concerning child abuse had their origins in these laws, as well as in statutes extending the scope of rape to the abuse of immature girls. Along with the increase of the age of consent from 10–12 to approximately 16 in most countries, abuse of boys and sexual contacts other than inter- course have been included in these statutes. This movement, sometimes supported by moral crusades against ‘immorality’, occurred in most Western countries along with the exten- sion of the school system, and with the acceptance of the view that adolescence should, as a distinct period of life, be devoted to the preparation for adult life. In recent years, the focus has shifted from combating ‘immorality’ to the protection of vulnerable parties. Sexual contacts between juveniles have been gradually decriminalised, whereas recent moral crusades call for more tougher prosecution policies, bringing to the courts a higher proportion of cases, including those involving acts committed abroad and/or in the re- mote past.
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Relevant quotes:
From the viewpoint of Christian morality, sexual contacts were permitted only within a context where procreation was biologically possible and socially desirable – within marriage. This standard was in itself hardly any different from the current views of the Catholic and other Christian churches. However, what made moral standards somewhat more relaxed was the ambiguity of the definition of marriage before the reforms of laws regarding marriage, brought about by Protestantism and the Council of Trent in 1563. Before these reforms, the church considered as married any couple who engaged in sexual acts with what was called animus matrimonii, that is, with the idea of a lasting relationship (Plöchl 1960, vol. II, p. 269). Given this wide interpretation of marriage, any heterosexual relationship between unmarried persons could be seen as a matrimonium clandestinum, that is, a ‘secret’ or, rather, an informal but nonetheless valid marriage.
A wide definition of marriage may have been in line with the interests of rural communities where it allowed the easy arrangement of many otherwise embarrassing situations. However, it hardly responded to the interests of the ruling bourgeois classes in Europe’s growing cities, since it did not help parents to control the choice of partners by their children and prevented them from using marriage as a tool of accumulating wealth and forming alliances with other family clans. The public announcement of engagements, the increased minimum age and the requirement of parental consent to marriage belonged, therefore, to the most popular features of the Reformation among the ruling classes in the cities, and explains in itself to a large extent its success particularly among Europe’s urban populations. During the Council of Trent, the Catholic church had, therefore, to concede that no mar- riage should be valid unless it was concluded before a priest after a public announcement in due form (Plöchl 1960, vol. IV, pp. 218, 269).
Since the ruling urban classes had a vested interest in fighting any sexual conduct that threatened the newly established standards concerning marriage, the statutes of cities and principalities increasingly criminalised couples living together without being officially married. Soon these statutes were extended to any form of deviant heterosexual conduct, making any sexual relationship among unmarried persons an offence (fornication, stuprum). In practice, however, the narrower definition of marriage had not been easily accepted by rural populations even by the end of the eighteenth century, as writings by poets and early tourists (including Goethe) – describing e.g. the morals in Swiss villages and other rural areas – as well as official records from rural France illustrate (Depauw 1972).
On the other hand, the standards were particularly rigid regarding marriage and seduction of sons and daughters of leading families; in France for example, sexual relations with children from the elite were – under the designation of rapt de séduction – considered as a form of (violent) abduction and punishable by death (Duguit 1886). Many comedies – from Molière to Goldoni – offer ample illustrations of this. But adolescents from popular classes were left without almost any protection since they tended to leave their families at approximately 10 years of age and were, therefore, considered adults in all respects including sexual matters (Castan 1971, p. 99; Ariès 1960/ 75, p. 540). Statutes prohibiting sexual relations between unmarried persons were, therefore, typically applied to women and girls from popular classes who had lost their good reputation; this was the background to the tragic figure of Margaret in Goethe’s Faust (Wächtershäuser 1973; Radbruch and Gwinner 1951, p. 242).
Under the criminal law before 1800, the young age of a seduced girl might, at best, have been considered as a mitigating circumstance, but never saved her from being viewed as an accomplice in an indecent act rather than as a victim. Age was, until the early 1800s, irrelevant from the viewpoint of criminal law as far as sexual relationships between ‘consenting’ parties over the age of puberty were concerned.
Only very young girls under the age of puberty were consistently considered as victims regardless of their own behaviour. Following an earlier statute enacted under Edward I in 1275, the concept of age of consent first appeared in Anglo-Saxon law under Elizabeth I in 1575/76 it was this statute which was later adopted by the American colonies where this of- fence continued to exist until present times as statutory rape (Hall and Glueck 1958: keyword ‘rape’; Schultz 1980). At about the same period or slightly earlier, similar statutes appeared in several cities and principalities in Italy (Kohler 1897, p. 501) and throughout the German Empire (Würtenberger 1933, p. 105). They were probably influenced by the writings of criminal law professors, such as Damhouder in the Netherlands and Clarus (1583, p. 44) and Menochius (1587, vol. 2, p. 412) in Italy, who, under the influence of Roman law (Digesta 48, 19, 38, 3 de poenis), developed the concept of the incapacity of very young girls to consent validly in sexual matters. Most influential throughout continental Europe was the statute of 1577 of the Prince Elector of Saxony which became well known through the famous treaty of criminal law by the Saxonian professor Benedictus Carpzovius. Rather than relying on puberty as the – necessarily vague – criterion, it introduced an age-limit of 12 years, under which any sexual act committed by an adult was considered to be an offence tantamount to rape; in the treaty of Carpzovius, this offence appears in the chapter concerning rape (stuprum violentum) as well as in the one concerning fornication (stuprum voluntarium). This illustrates well the ambiguity which surrounded the new offence: it was not certain whether it should be considered as an offence directed against individual interests (as in the case of rape), or rather as an offence against public morals (as in the case of fornication).
In practice, however, sexual abuse of immature girls was usually dealt with as a special form of rape. This was true to some extent for Germany and even more so for Italy, France and England. The practical importance of these laws was very limited, however, as was the role played by the French statutes against seduction and abduction of juveniles. Convictions at least were, compared to contemporary standards, surprisingly rare under these statutes, as studies based on court records tended to show. Several factors may have been responsible for this. On the one hand, children and adolescents may have been much more involved in adults’ daily lives, sharing even the bed with them and having many physical contacts of all kinds (Ariès 1960/75, p. 175); thus, tolerance towards sexual contacts between adults and children may have been greater in those days. On the other hand, feelings of shame may have been stronger in the past and adults may, therefore, have been more restrained from sexually approaching children than nowadays (Duerr 1988, pp. 197–210). However, the strong taboo surrounding sexuality and abuse of children could also have led to a social climate where many (eventually minor) forms of abuse had been ignored by society and the criminal justice system. Whatever the true reason may be, it seems definitively that sexual abuse even of children was not a major concern to the criminal courts before 1800. Child abuse really seems to be a ‘modern’ crime.
The increase of the age of consent occurred usually in connection with an extension of the scope of statutes concerning the protection of minors from sexual abuse (Killias 1979, pp. 117–122). Before 1800, these statutes usually covered only sexual intercourse or very serious forms of sexual abuse; during the nineteenth century, they increasingly included any acts which could be viewed as sexually motivated, such as kissing, hugging, petting, etcetera. At the same time, female adolescents were no longer the only target of protection, but reformed statutes increasingly criminalised homo- and heterosexual acts with boys as well. Concomitantly, young persons could be involved in any such crime only as victims whenever the offender was an adult; thus, the adult partner began to be seen as the only guilty party whatever the behaviour of the adolescent had been. Before 1800, no such absolute rule had ever existed in this domain.
The French Revolution and the legal reforms it had initiated in many countries considerably reshaped the legal environment for adolescents and their sexual conduct. Most significant was undoubtedly the increase of the age of consent to marriage from 14 years for boys and 12 years for girls (under the Catholic ecclesiastic law) to 18 to 21 years in most countries (Plöchl 1960, vol. IV, p. 235). This change implicitly excluded adolescents from any legitimate sexual activity, given that society continued to accept sexuality only within the context of procreation and marriage. During the same period, the statutes making fornication, that is, sexual relationships between consenting adults an offence, were repealed in all but a few countries (among which were many US States). These legal changes exacerbated the problem of protecting adolescents – and not only children – from sexual abuse.
Legislators throughout the Western world reacted by expanding statutes concerning sexual abuse of minors. First of all, the age of consent tended to be raised from puberty or as low as 10–12 years to 13 (France 1863), 14 (Austria 1852, German Empire 1871), 15 (Sweden 1864) or even 16 years (England and Wales 1885). This trend continued into the twentieth century and has so far not yet been reversed, although 16 has become the prevailing upper limit, as is illustrated by Figure 1 which covers all legal changes in this area in eight European countries and from 1791 to the present time (Killias 1979, pp. 123–153).
Given that these reforms usually occurred in a climate of liberal reforms, characterised e.g. by the legalisation of hetero- and sometimes even homosexual relationships between consenting adults, one might say that regulations of sexual conduct involving minors became more repressive the more the standards for adults tended to be relaxed. Reforms extending the scope of statutes concerning sexual abuse of minors usually went along with the increase in the age of consent.
As Table I illustrates, the correlations between the age of consent and the extension of the scope of these statutes are very strong (and significant, p < 0.01), that is, close to the maximum correlations between continuous and dummy variables. They also reach similar values in the three analyses included in Table I. These three samples of codifications showed also very similar correlations between the age of consent and time of enactment. This suggests that the increase in the age of consent really went along with extensions of these statutes in other respects, and that the same trend occurred in different countries. It now remains to be seen how this trend can be explained.
Under the Ancien régime, the transition from childhood to adulthood was not a matter of clear-cut age-limits, but occurred more gradually, accord- ing to the practical demands of life. Many juveniles occupied adult social roles in the domains of work, the military – where boys of 15 years could accede to officer’s positions – in politics and in the family. This was not true only for juveniles from the elite or in exceptional positions, but for juveniles from virtually all social classes; in the rural Swiss cantons, juveniles were usually admitted to the so-called Landsgemeinde, that is, the open-air gathering where people elected officials and decided upon political issues, from the age of about 15 when they participated in the armed forces (Blumer 1850). Thus, throughout Europe, juveniles were well integrated into the world of adults.
What has brought about these changes in the role of juveniles in general and the increasing exclusion of sexuality from their social role? According to Ariès (1960/75) who is the leading authority in this domain, the educational sector played the decisive role in this development: the more the schools covered all social classes, the longer they extended to age-groups beyond childhood, and the more they became intellectually demanding (instead of offering mere religious instruction), the more juveniles tended to be excluded from adult social roles. During the nineteenth century, the school systems throughout the Western world expanded considerably in all three respects, whereas schools in earlier centuries never reached all segments of the population, did not last longer than just a few years and offered rather little education. Thus, one may hypothetically assume that the statutes regulating sexual abuse of minors were the broader in scope and in age-limits, the more the school system tended to be expanded in a given society.
On the other hand, one might also argue that the exclusion of juveniles from adult life was affordable only to societies with a certain surplus production and a relatively long life expectancy.
Although the explanatory power of the educational variable is by far stronger, the percentage of Protestants and the degree of industrialisation both contribute significantly to the explained variance. Even if Protestant- ism has favoured industrialisation and if the latter was the precondition to the expansion of the school system, the educational system played the decisive role in the exclusion of adolescents from adult life including the sphere of sexuality. There is good reason to assume that this had been true not just for the Swiss cantons, but for Europe in general, given the con- sistency in trends observed in many European countries in the present study and the support these conclusions find in other author’s writings on the history of childhood and adolescence (see e.g. Ariès 1960/75).
In general, these reforms were not adopted as isolated measures, but occurred within the context of general revisions of the criminal code or at least of its chapter on sexual offences; usually certain parts of these packages met with the opposition of several groups within the parliament or the public, as was the case when prostitution or brothels were to be outlawed, but these debates never concerned the proposals made in connection with sexual abuse of minors (Killias 1979, pp. 111–112). The relative silence surrounding these reforms, as well as their seemingly self-evident acceptance by parliaments, experts and the public, puts into question Gusfield’s (1967, p. 188) assumption that ‘moral crusades’ necessarily generate strong counter-movements; it also seems doubtful whether lobbies, among which were early feminists and moral entrepreneurs, really were as important in this case as their pamphlets may suggest. Since most of these legal reforms occurred long before women suffrage had been adopted in Europe, the political weight of feminists may not have been a decisive factor in the reform movement’s success. As in the case of American anti-prostitution laws (Hagan 1980), the leading figures in the process of creating these laws had been, besides legal experts and early feminists, individuals engaged in social work and sharing humanitarian ideals (Reinhardt 1967, pp. 28–34), whereas the political and economic elite were rather passive in this case as they seem to be, more recently, in American criminal law making in general (Berk et al. 1977, pp. 293–294). Unclear, so far, is the influence the media had in this particular case.
With the gradual disjunction of sexuality and procreation, the exclusion of adolescents from the domains of paid work and family no longer implies their automatic exclusion from sexual experiences; thus, sexuality no longer needs to be totally suppressed during adolescence as part of preparation to marriage, and virginity has lost most of its former value (Sigusch and Schmidt 1973). Given the surplus production and the strong incentives to consumption in modern Western societies, it no longer seems rational to train adolescents in post- poning or even suppressing the satisfaction of needs (Adorno 1963, p. 300; Dörner 1971, pp. 175–176); indeed, it seems much more functional to encourage them to pursue the satisfaction of needs as immediately and completely as possible.
All these changing conditions in the socialisation of juveniles seem to converge on a more differentiated transition from adolescence to adulthood (Rosenmayr 1976).
How did the criminal law adapt to these changes in the role of adolescents during the last generation? So far, the age of consent has not been lowered in Europe (Horstkotte 1984), whereas such reforms have been passed in a few American States (Schultz 1980). In Austria and, more recently, in Germany (1994) and in Switzerland (1992), however, the sections in the Criminal Code concerning sexual abuse of minors were amended in a way which legalised sexual contacts between young persons as long as the older partner is relatively young, that is, younger than 21 in Germany or not more than two (Austria) or three years (Switzerland) older than the younger partner. Similar amendments had been brought forward in 1962 by the American Law Institute in its Model Penal Code (Section 213.3).
In most countries, however, consensual contacts among young persons were ‘legalised’ under the expediency principle, that is, by dropping prosecutions of such cases; these policies have brought about a massive drop in convictions, particularly in countries with traditionally high conviction rates (Killias 1987). Thus, it seems as if European countries were increasingly following a line which has been in use in the United States for many years where, despite unusually high ages of consent in the sections on statutory rape, teenagers are hardly facing any risk of prosecution under these laws (Skolnick and Woodworth 1969; Zelnik et al. 1981). The fact that prosecutors tend to seek the solution through policies of non-prosecution rather than by asking legislators to amend the statutes concerning protection of juveniles in sexual matters, illustrates the difficulty of repealing or amending offence definitions which are no longer in line with current views and standards. It seems as if a taboo, once in the criminal code, is there to stay eternally whatever the problems it produces in practice.
No matter whether the ‘legalisation’ of sexual experimenting among juveniles is being achieved through amending laws or through a policy of no longer prosecuting consensual relationships between young persons, the shift which has occurred throughout the Western countries also denotes an increasing recognition of the role of adolescent partners, since a free will (and some capacity to consent) seems no longer to be denied to persons under the age of consent under all circumstances, as a generation ago. Unlike in the recent past, the focus is no longer fighting ‘immoral’ behaviour among juveniles (who claim to do what adults consider their right to do), but on the protection of the vulnerable, as Boutellier (1993/2000) has observed much more generally.
This partial decriminalisation is, however, only a small part of the picture. Sexual abuse of minors has, in fact, become the focus of enormous media attention over the last 20 years. Interestingly, those involved in this new moral crusade are convinced of having ‘discovered’ this problem, and seem to ignore the preceding waves of such campaigns in the late nineteenth century and again after 1945 – when many American States adopted so-called Sex Psychopath Laws (Murbach 1980). What is new, however, is the focus on the protection of children as vulnerable beings, and the lesser moral condemnation of sexuality in general, including of homosexuality. This new focus coincided with widespread concern about violence against women and children in the family context which represents another form of abuse of vulnerable persons by somebody in a power position.
