Age of Consent

Age of Consent

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Traditionally the age at which individuals could come together in a sexual union was something either for the family to decide or a matter of tribal custom. Probably in most cases this coincided with the onset of menarche in girls and the appearance of pubic hair in boys, that is, between twelve and fourteen, but the boundaries remained fluid. In much of classical Greece this was true of both same- and opposite-sex relationships. In Republican Rome, marriage and the age of consent were initially private matters between the families involved. Not until the time of Augustus in the first century c.e. did the state begin to intervene. Marriage then legally became a two-step process, a betrothal which involved an enforceable agreement between the heads of two households, and then marriage itself. Women who were not yet of age could be betrothed with the consent of their fathers, but the woman herself had to consent to marriage.

The Roman tradition influenced peoples and cultures with whom it had come in contact. In the Islamic tradition following Muhammad, betrothal could take place earlier than puberty, perhaps as early as seven, but the marriage was not supposed to be consummated until the girl menstruated and was of age. In medieval Europe, Gratian, the influential founder of Canon law in the twelfth century, accepted the traditional age of puberty for marriage (between 12 and 14) but he also said consent was "meaningful" if the children were older than seven. Some authorities said consent could take place earlier. Such a marriage would be permanent as long as neither party sought annulment before reaching puberty (12 for girls and 14 for boys) or if they had already consummated the marriage. Even if the husband had technically raped his wife before she reached puberty, the marriage was regarded as consummated. It was this policy which was carried over into English common law, and although consent was necessary, force and influence or persuasion seemed to have been permissible elements. Similarly Gratian's ideas about age became part of European civil law.

The age of consent in both English and continental law seemed to be particularly elastic when property was involved or family alliances were at stake. For example in 1564, a three year old named John was married to a two year old named Jane in the Bishop's Court in Chester, England. Though Shakespeare set his Romeo and Juliet in Verona, the fact that Juliet was thirteen probably reflects the reality in England. Her mother, who was twenty-six, calls her almost an old maid.

The American colonies followed the English tradition but the law could at best be called a guide. For example in Virginia in 1689, Mary Hathaway was only nine when she was married to William Williams. We know of her case only because two years later she sued for divorce, and was released from the covenant she had made because the marriage had not been consummated. Interestingly, historian Holly Brewer, who discovered the case, speculated that if William had raped Mary, she probably would not have been given the divorce. The only reliable data on age at marriage in England in the early modern period comes from Inquisitions Post Mortem which involved only those who died and left property. It appears that the more complete the records, the more likely it is to discover young marriages. Judges honored marriages based on mutual consent at age younger than seven, in spite of what Gratian had said, and there are recorded marriages of two and three year olds. The seventeenth-century lawyer Henry Swinburne distinguished between the marriages of those under seven and those between seven and puberty. He wrote that those under seven who had said their vows had to ratify it afterwards by giving kisses and embraces, by lying together, by exchanging gifts or tokens, or by calling each other husband or wife. A contemporary, Philip Stubbes, wrote that in sixteenth-century East Anglia, infants still in swaddling clothes were married. The most influential legal text of the seventeenth century in England, that of Sir Edward Coke, made it clear that the marriage of girls under twelve was normal, and the age at which a girl who was a wife was eligible for a dower from her husband's estate was nine even though her husband be only four years old.

The age of consent was more variable than a summary of the law seems to imply. Peter Laslett, for example, used available statistics to argue marriage and child bearing in the late teens was not common in England and marriage at twelve was virtually unknown. The problem is that his statistics might well be skewed because in England only a small portion of marriages were registered, and even on these registrations it is difficult to tell if they recorded first or second or later marriages. A second marriage by a man in his late fifties or a woman in her early thirties skews the data. Not all marriage records even bother to record the participants' ages. Unrecorded are marriages without parental consent and private weddings and the quality of data varies from region to region. For example in the parish of Middlesex County, Virginia, there is a record of fourteen-year-old Sarah Halfhide marrying twenty-one-year-old Richard Perrot. Only in the last sentence of the register does it indicate that she was a widow. Did the compiler read that far? We simply do not know what her age at first marriage was, or even if it had been consummated. Of the ninety-eight girls on the ten-year register, three probably married at age eight, one at twelve, one at thirteen, and two at fourteen. Historians in the twentieth and twenty-first centuries have sometimes been reluctant to accept data regarding young ages of marriage, holding instead that the recorded age was a misreading by a later copier of the records. Natalie Davis, whose book The Return of Martin Guerre became a movie, made her heroine, Bertrande, much older than the nine-to ten-year old girl she was when she married her missing husband.

In the nineteenth century France issued the Napoleonic Code and many other countries, following France's example, began revising their laws. The Napoleonic Code, however, had not changed the age of consent, which remained at thirteen. When historian Magnus Hirschfeld surveyed the age of consent of some fifty countries (mostly in Europe and the Americas) at the beginning of the twentieth century, the age of consent was twelve in fifteen countries, thirteen in seven, fourteen in five, fifteen in four, and sixteen in five. In the remaining countries it remained unclear. In England and the United States, feminist agitation in the late nineteenth century called attention to the young age of consent and called for changes in the law. By the 1920s the age of consent, a state issue in the United States, was raised in every state and ranged from fourteen to eighteen, with most states settling on sixteen or eighteen.

In the last part of the twentieth century the U.S. public once again took note of age of consent issues. Although sometimes it is not possible to identify a single age of consent since the statutory age varies with the age of the defendant and with the particular sexual activity, in the United States as of 2000 the age at which a person may engage in any sexual conduct permitted to adults within a particular state ranges between fourteen to eighteen. In the vast majority of states the age is either fifteen or sixteen. Most states set the minimum age for marriage without parental approval at eighteen, and there are elaborate provisions governing which parent must give consent and who qualifies as a custodial parent or guardian when marriage under eighteen takes place. There are occasional contradictions since some states will allow a minor to marry with parental permission at an age when the minor cannot engage in legal sexual activity, while others allow a minor to engage in sexual activity years before he or she can marry without parental approval.

See also: Bundling; Dating; Sexuality.

bibliography

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Vern L. Bullough