Laura Lammasniemi: The Age of Consent in the 19th Century: Trustworthiness and Capacity on Trial

Laura Lammasniemi

Dr. Laura Lammasniemi is an Assistant Professor at Warwick School of Law. Laura’s principal research interests lie in the areas of criminal law, gender, and class. She is a Leverhulme Fellow 2020-2021, working on a project on the history of sexual consent in criminal courts. This project focuses on how the concept of ‘consent’ has been understood historically in different contexts such as rape, age of consent/youth, and BDSM. Previously, Laura has published on the history of regulation of human trafficking; and on gender, austerity and social welfare.



Laura Lammasniemi’s article, “Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England, appears in the latest issue of Law and History Review.  Below, she explains some of her main insights into reform of age of consent in the late nineteenth century and how it was dealt with in courts.

The age of consent for sex outside marriage was raised in England from thirteen to sixteen in 1885 after nationwide campaigns and an unprecedented amount of attention on the topic in the newspapers. It remains sixteen today. The concern over working-class girls’ well-being, early sexual experiences, and child prostitution brought together women’s rights activists, evangelical Christian groups and even socialist workers groups. All joined in a quest to reform the law in order to protect young girls from unwanted sexual advances. Their concern over premature sexual experiences was highly gendered and the age of consent only applied to girls. While common law set a minimum age of marriage for boys at 15 and girls at 12, boys had no age of consent for sex outside marriage. This concern was fueled by W.T Stead’s scandalous and hyperbolic reportage “The Maiden Tribute of Modern Babylon”, published in the Pall Mall Gazette in 1885, on child prostitution in London. “The Maiden Tribute”, filled with lurid tales of parents selling their children and gentlemen seducers targeting young working-class girls, was the most successful piece of tabloid journalism in the Victorian period and ultimately it was the catalyst that led Parliament to pass the Criminal Law Amendment Act 1885 which raised the age of consent to sixteen.  In my LHR piece, I discuss why the age of consent became such a concern during that period, how it related to wider campaigns to “save” working-class children, and how age of consent was dealt with in courts. In this blog, I discuss the part of my LHR piece on what happened after the age of consent was raised, and how the new legislation was received in courts.

(Maiden Tribute to Modern Babylon by WT. Stead)

The key finding from my research is that even after the age of consent was raised, courts were reluctant to believe victims and to enforce the legislation fully. The Act that raised the age of consent, the Criminal Law Amendment Act 1885, received a mixed response in courts. While archival records from courts are sparse, the cases that have been preserved in the archives show that some judges welcomed it as a step in the right direction, but many others raised suspicion. The cases discussed here can best be described as cases of child sexual abuse as the victims in question were below the age of consent, often younger than 12. Despite the young age of the victims, the courts often failed to view them as victims. It appears, from the court archives, that it was often as if the victims were on trial, as much as the defendants, as the courts questioned their sexual history, character, and whether they had consented to the sexual activity in question. 

In 1893, a judge presiding over an appeal of a man convicted of raping his young daughter, wrote to the Secretary of State asking for guidance on whether the conviction should stand as the case relied heavily on victim’s testimony. In the letter, the judge spoke about “young girls of her class and condition” and said, “it is very difficult in these cases to make a jury feel, as I do, the utter unreliability of the evidence of somewhat abandoned and precocious girls and the danger of acting upon it.” This quote is telling. It not only reveals the attitudes of certain judges towards women and girls who were in the courts, but it is also telling of the class prejudices that some judges showed. In most cases recorded in the late nineteenth century, both the victims and defendants were described as working-class. The class prejudices that the judges showed towards working-class girls and women are often evident in the court files and transcripts. Working-class girls were often presumed to be sexually active and even victims who were below the age of 12 were often questioned about their sexual history and medically examined for signs of loss of hymen and/or evidence previous sexual encounters. 

Sexual abuse cases were, and remain, particularly problematic from an evidentiary perspective as they often rely on testimonies and other evidence might be sparse. When the girls were giving testimonies or their testimonies were discussed, their character was often called into question and they were repeatedly quizzed about their trustworthiness.  Victorian rules of evidence made it difficult to prove an offence had taken place because the evidence of women and children had to be corroborated. While children’s testimonies had to be corroborated, they could be heard in court regardless of their age.  Hale’s, now infamous, statement that rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent” was frequently relied upon in courts. While some judges had sympathetic words for the victims, there was also clearly a deep distrust in the girls’ word, regardless of her age, often based on her class, parents’ drinking, and her own suspected sexual history.

Discussion on the victims’ character and potential sexual experience was undoubtedly used to discredit their testimonies but I show in my article that it was also used to imply consent to the events. Consent should not have been an issue in these trials as in all the cases the victim was under the age of consent. To determine liability, the cases should simply have been about whether the act happened, as the victim by default had no capacity to consent. However, consent was often discussed as evidence of the victim’s unreliability or wickedness or to argue that the man’s actions were understandable. The first definition of consent in sexual offences cases in England and Wales was given only in 2003, with the Sexual Offences Act 2003. As there was no statutory definition of consent at the time, the concept of “consent”, or lack of it, was given a new interpretation at every trial. 

While the trials often focused on resistance and force, consent became an increasingly important concept throughout the period. At times, victims themselves explained their lack of consent explicitly as lack of choice or lack of willingness, yet the courts were reluctant to accept those terms, instead requiring physical evidence of resistance and physical violence. In lower level trials, however, any nuanced discussion on consent was often missing and more emphasis was placed on resistance, even when the victim legally lacked capacity to consent due to her youth. Evidence in these cases focused on the physical aspects of the crime, on the amount of blood, torn clothing, or physical injuries even if the victims themselves at times articulated consent distinct from resistance, as lack of choice or willingness. Within this focus on physical evidence, the courts dwelled on the signs which were visible to them rather than the symptoms that the victim reported, such as pain as shown by work of Victoria Bates.

In conclusion, by definition, age of consent is about setting a minimum age under which a person does not have the capacity to consent to sexual activity. The findings from the trials show, however, that courts did not treat age of consent as an absolute limit but often allowed for discussion on the victim’s character, sexual history and family background.  You can read more on all this, and on the issues of class and family background more in  “Precocious girls”: Age of consent, class and family in late nineteenth-century England.