Age of consent law and the making of modern childhood in New York City, 1886-1921

Journal of Social History, Summer, 2002 by Stephen Robertson

The modern offense of statutory rape had its origins in turn-of-the-century campaigns by purity reformers to increase the age of consent. In 1885, in the aftermath of the scandal surrounding the publication of "The Maiden Tribute of Modern Babylon," W.T. Stead's expose of the traffic in young girls in London, such campaigns became part of the fight against prostitution in the United States. The scandal spurred the British Parliament to raise the age of consent from ten to sixteen years, a move that directed the attention of American reformers to the state of the law in their country. Efforts to bring about a similar increase in the age of consent in state and federal law spread throughout the country in the late 1880s, spurring twenty-four states to amend their laws by the end of the decade. Although such campaigns waned in subsequent years, reformers were continuing to win increases in the age of consent as late as 1918. By 1920, however, purity reform, reconstituted as the social hygiene movement, had aband oned efforts to raise the age of consent in favor of a focus on sex education. (12)

Interpretations of the nature of purity reformers' campaigns have focused on the reformers' argument that, as Adam Powell put it in the leading purity reform journal of the day, the age of consent should be increased in order to prevent "vicious and designing men" from leading astray poor girls in order to satisfy their lust, thereby creating "flagrant spectacles of vice [and] abandoned girls in their teens in the streets."' (13) But Powell went on to develop a second strand of argument, one that invoked a scenario of sexual violence rather then seduction, and that relied on ideas about childhood. (14) He asserted that, unless the age of consent was increased, whenever a ten year old girl was "assaulted and overpowered, if it be shown that she did not resist to the uttermost limit of exhaustion, the man (?) who assaulted her may still successfully plead 'consent,." (15) To Powell, raising the age of consent would afford to girls the same protection currently extended by existing laws to children under the age of ten. Though older, Powell believed, those girls' physical immaturity rendered them similarly incapable of effective resistance. In effect, then, increasing the age of consent was a means of extending childhood. Purity reformers' concern to redefine childhood in this way reflected a growing attention to physiological and psychological development in the aftermath of the Darwinian revolution. Viewed in this new light, children appeared more sharply different in nature from adults. Their distinct natures were now seen as changing as they developed and matured, a perception that replaced the Victorian dichotomy between childhood and adulthood with an increasingly segmented spectrum of age groups. Maturity came only after the end of puberty, long after the point at which, in earlier conceptions, childhood had drawn to a close, and well beyond the age of ten years defined by American rape laws as marking the upper limit of childhood. (16) Purity reformers' attention to development reflected the presence in thei r ranks of two groups attuned to the new view of children's bodies. The first group was composed of medical practitioners, of whom Dr. Emily Blackwell, a leading member of the New York Committee for the Prevention of the State Regulation of Vice was the most prominent. The second group comprised leaders of the child protection movement, most notably Elbridge Gerry, the founder of the NYSPCC, the society that provided the model for child protection organizations established throughout the English-speaking world in the last quarter of the nineteenth century. (17)