One of the things I find fascinating about history is how ideas developed over time. In the wake of Roy Moore’s rightful election defeat, and the women who came forward about his predatory behavior, I’ve been thinking about how our ideas of age of consent came about. It can be easy to assume these laws were just always in place. Defining the age of consent was a surprisingly contentious debate, which marked a cultural turning point in the United States.
When Victorian Era reformers in Britain campaigned to safeguard the purity and social mores of their culture, their American peers promptly followed suit. A key aspect of this movement in both countries was a campaign to increase the age of consent. Most state legislatures had simply replicated the language of British laws when drafting their own statutory rape laws. Every state was still operating under a legal standard that had been drafted centuries before and an ocean away. In 1885, the Women’s Christian Temperance Union (yes, the same WCTU behind Prohibition) conducted a survey to determine the ages of consent across the country. The results were disheartening to contemporary reformers, and jarring by modern standards. In a few states, the age of consent was twelve years old, in most it was ten, and in Delaware it was seven. Galvanized by these numbers, the WCTU began a national campaign to raise the age of consent to eighteen.
Organizations like the WCTU were made up almost entirely of middle and upper class white women, who saw it as their duty to provide moral uplift to working class women. In light of this mission, they viewed young, working class women as particularly vulnerable under current statutory rape laws. The WCTU quickly crafted a dramatic and gut-wrenching narrative of corruption and ruin to stir potential supporters to action. Novels, pamphlets, and newspaper editorials all ran with the same tale. A much older, middle class man seduces a young, working class girl. Sometimes the girl is left pregnant, or with syphilis, but she is always abandoned by her new lover and left ruined and penniless. If the women of the WCTU were aware that most working class young women were having sex with men from similar backgrounds, they made no note of it. The narrative of cross-class ruin, and poor women having their reputations and lives destroyed was simply too good to give up.
The rich man-poor girl story of lust and betrayal used by activists also tapped into the social and economic insecurities of many working-class men, particularly fathers. Between the 1870s and the 1910s, American cities experienced a sharp increase the number of young women who worked outside home. While young women working was not a new phenomenon, they had traditionally taken jobs as domestic servants. This generation of women was going to work in mills and factories, away from their homes and families. Traveling to and from work, and contributing wages to the family brought an increased sense of personal independence. As a result, these young women also engaged more regularly in leisure activities that took place outside of the home. Dance halls, theaters, and other recreation venues created spaces where young people could pursue and engage in sexual relationships away from their parents’ watchful eyes. For parents who were used to exerting authority over their unmarried daughters, the new levels of autonomy posed a profound threat to their way of life.
Against this backdrop, the WCTU pushed every state to increase their age of consent. They argued that doing so would better protect young women, and make it easier to hold male offenders legally accountable. In truth, even the forcible rape laws of the time did little to hold rapists accountable. Victims of rape had to prove they attempted the “utmost resistance.” A concept that is almost uselessly vague, the “utmost resistance” standard generally required that a victim resist her attacker until physically exhausted or unconscious, that the victim have witnesses to her resistance, and that she be able to prove her moral character. Furthermore, only middle class, white male witnesses tended to be believed. If a woman had a reputation of being anything less than chaste or virginal, courts and juries frequently assumed that she could not have been a victim of rape. These standards of ideal victimhood were impossible for most women to achieve, especially poor women and women of color. When so few individuals could measure up to the idea of what a victim of forcible rape should be, increasing the age of consent meant that more women could seek some form of justice under the statutory rape laws.
Though the women of the WCTU and other activists were likely sincere in their efforts to protect young women, they were not without their own failings. Most notably, their campaigns and rhetoric ignored black women, who were particularly vulnerable to sexual assault. Popular prejudices, especially in the South, insisted black women could not be victims of rape. Many white men were adamant that black women were especially animalistic and likely to tempt men into sex. Previous generations of slave owners used these same assertions to justify assaulting enslaved women, and the idea of black women and men as unable to control sexual urges continued well after the end of slavery. The power dynamics of the US in the late 19th century meant black women had few viable ways to resist sexual coercion from white men, and fewer options for recourse after an assault.
In response to these threats and the neglect from white women’s organizations, African American women formed their own clubs, which sought to improve the moral standard for black men and women. While these clubs argued for a single standard of morality for men and women, many did not publicly support criminal consequences for accused sex offenders. White supremacy in the post-Civil War South relied heavily upon a completely fictitious narrative of black men raping white women. False accusations of assault were often the justification for lynching and other forms of racially motivated violence. Endorsing harsher punishments for accused offenders risked implicitly supporting the practice of lynching. Even though African American clubwomen repeatedly pushed the women of predominantly white clubs like the WCTU for support, white reformers stayed largely silent about racially-motivated violence, in an effort to appeal to broader base of white supporters.
Increasing the age of consent from ten or twelve does not seem like a controversial idea. However, many legislators opposed the idea for reasons that were questionable at best. Opponents argued that young women might use their wiles to seduce men, then either blackmail them or charge them with rape. These men insisted that young men were naïve and prone to seduction, while young women were more cunning and able to tempt boys in ways the latter couldn’t resist. Thus, raising the age consent would inevitably create opportunities for conniving women to ruin the lives of countless young men. (Quick reminder- the evil and cunning temptresses in these scenarios could be as young as eleven or thirteen.) Opponents further argued that young women and girls matured faster, and thus understood sexual dynamics better than boys of the same age. Doctor C.C. Mapes of Kentucky suggested that, “under ordinary circumstances no female who has arrived at the age of understanding, be she ever so weak, so long as consciousness remains, can be forces against her will to participate in the act of copulation by a male be he ever so strong.” It’s worth noting that many of these men were likely worried about potential consequences for themselves or their peers under revised laws that could hold them legally accountable for coerced sexual encounters.
Despite opposition, the WCTU’s campaign ultimately proved successful. By 1890, twenty-four states had raised their age of consent. Three states raised the age of consent to sixteen, Kansas to eighteen, and several other states had increased their ages to between thirteen and fifteen. Legislators frequently tried to introduce bills to undo the changes, but these efforts failed to gain traction. By 1920, every state had a legal age of consent of either sixteen or eighteen.
These laws remained largely untouched until the 1970s when activists within the feminist movement began to campaign for two more key reforms. First, they argued that the language of statutory rape laws needed to be gender neutral, where earlier statutes defined the crime as one committed by older men against women. This change would better protect young males from sexual predators. It also placed men and women on more equal legal footing, combating stereotypes of women as perpetual victims. By 2000, every state adopted the gender neutral language for their age of consent and statutory rape laws. Activists also successfully lobbied for the age span laws, in which the perpetrator must be a certain number of years older than the victim. Implementing age spans meant that teenagers who were close in age and engaged in consensual sex would not face criminal punishment. Most states have adopted age spans into their laws, though the vary from zero to six years. Currently, all fifty states define the age of consent as either sixteen, seventeen, or eighteen years old, maintaining the standards of the 1920s. However, many states still have provisions in the law that allow married couples to have sex, even if one party is under age. These states also commonly allow minors to marry with written approval from a parent or guardian.
Though the application of these laws is confusing and often uneven, they still establish a legal framework by which we view adulthood and sexual maturity. The changes to the age of consent made by reformers in the late 19th century, reshaped contemporary ideas of sex and coercion and formed the standard we operate by today. The quick snapshot above is by no means a complete or exhaustive history of the subject. If you’re interested in learning more, check out the source material listed below. Like most of our history it manages to be fascinating and deeply troubling all at once.
The above was cobbled together lovingly by me, from the below resources. They’re worth reading in full though, and all available through your local library.
Mary Odem. Delinquent Daughters, Protecting and Policing Adolescent Female Sexuality in the Unites States, 1885-1920.
Carolyn E. Cocca. Jailbait: The Politics of Statutory Rape Laws in the United States.
Jane E. Larson. “‘Even a Worm Will Turn at Last’: Rape Reform in Late Nineteenth-Century America” published in the Yale Journal of Law and Humanities.
Stephen Robertson. “Age of Consent Law and the Making of Modern Childhood in New York City, 1886-1921” published in Journal of Social History.
Eugene Volokh. “Statutory rape laws and ages of consent in the U.S.” published in The Washington Post.