Age of Consent - History and Social Attitudes

History and Social Attitudes

Traditionally, across the globe, the age of consent for a sexual union was a matter for the family to decide, or a tribal custom. In most cases, this coincided with signs of puberty, menstruation for a woman and pubic hair for a man.

Hesiod in "Works and Days" (circa 700BC) suggests that a man should marry around the age of thirty, and that he should take a wife who is five years past puberty. In Ancient Rome, it was very common for girls to marry and have children shortly after the onset of puberty.

The first recorded age-of-consent law dates back 800 years: In 1275, in England, as part of the rape law, a statute, Westminster 1, made it a misdemeanor to "ravish" a "maiden within age," whether with or without her consent. The phrase "within age" was interpreted by jurist Sir Edward Coke as meaning the age of marriage, which at the time was 12 years of age.

In the 12th century Gratian, the influential founder of Canon law in medieval Europe, accepted age of puberty for marriage to be between 12 and 14 but acknowledged consent to be meaningful if the children were older than 7. There were authorities that said that consent could take place earlier. Marriage would then be valid as long as neither of the two parties annulled the marital agreement before reaching puberty, or if they had already consummated the marriage. It should be noted that Judges honored marriages based on mutual consent at ages younger than 7, in spite of what Gratian had said; there are recorded marriages of 2 and 3 year olds.

The American colonies followed the English tradition, and the law was more of a guide. For example, Mary Hathaway (Virginia, 1689) was only 9 when she was married to William Williams. Sir Edward Coke (England, 17th century) "made it clear that the marriage of girls under 12 was normal, and the age at which a girl who was a wife was eligible for a dower from her husband's estate was 9 even though her husband be only four years old."

Reliable data for when people would actually marry is very difficult to find. In England for example, the only reliable data on age at marriage in the early modern period comes from records involving only those who left property after their death. Not only were the records relatively rare, but not all bothered to record the participants' ages, and it seemed that the more complete the records are, the more likely they are to reveal young marriages. Additionally, 20th and 21st centuries' historians have sometimes shown reluctance to accept data regarding young ages of marriage, and would instead explain the data away as a misreading by a later copier of the records.

A small number of Italian and German states introduced an age of consent in the 16th century, setting it at 12 years. Towards the end of the 18th century, other European countries also began to enact age of consent laws. The first French Constitution established an age of consent of 11 years in 1791, which was raised to 13 in 1863. Portugal, Spain, Denmark and the Swiss cantons, initially set the age of consent at 10–12 years and then raised it to between 13 and 16 years in the second half of the 19th century. Historically, the English common law set the age of consent to range from 10 to 12.

In the United States, by the 1880s, most states set the age of consent at 10–12, and in one state, Delaware, the age of consent was only 7. A New York Times article states that it was still aged 7 in Delaware in 1895. Female reformers and advocates of social purity initiated a campaign in 1885 to petition legislators to raise the legal age of consent to at least 16, with the ultimate goal to raise the age to 18. The campaign was successful, with almost all states raising the age of consent to 16–18 by 1920.

Social (and the resulting legal) attitudes toward the appropriate age of consent have drifted upwards in modern times. For example, while ages from 10 to 13 were typically acceptable in Western countries during the mid-19th century, the end of the 19th century and the beginning of the 20th century were marked by changing attitudes towards sexuality and childhood resulting in raising the ages of consent to around 16.