A third leg to the consent tripod
The age of consent has been an issue the last couple of days.
Yesterday, The Legal Genealogist responded to a discussion on Facebook, and explained the difference between the age of consent (in criminal law) and the age of consent (in family law).1
The first is the age below which the “but she said she wanted it” defense simply can’t work when a defendant is charged with sexual assault or rape, because the law declares that a child under a specific age isn’t capable of giving consent.
The second is the age at which people can choose to get married. At common law, for example, no boy under the age of 14 and no girl under the age of 12 could enter into a valid marriage — below those ages, they were simply too young to consent.
One reason why the post was written was to explain why it’s wrong and misleading to cite a chart about the age of consent in the criminal law as if it was the age of consent for marriage. The chart at issue is clearly focused on the first and not on the second2 — introductory material with it begins: “In western law, the age of consent is the age at which an individual is treated as capable of consenting to sexual activity. Consequently, any one who has sex with an underage individual, regardless of the circumstances, is guilty of a crime.”3
And, yeah, as usually happens, somebody had a follow-up question that I should have foreseen and mentioned.
Because there is another issue of age and consent and the birds and the bees.
Call it the third part — the third leg to the consent tripod.
Because even a boy and a girl who are old enough in the law to consent to marry each other may need somebody else’s consent.
Their parents’ consent.
Let’s use Alabama law in 1876 as an example. And the law in Alabama in 1876 clearly sets out all three legs of this consent tripod:
• The age of consent for sexual relations was the appallingly low age of ten years — “carnal knowledge of any female under the age of ten years” was absolutely prohibited, carrying the potential penalties of death or life in prison.4
• The age of consent to enter into a valid marriage was 17 for a boy and 14 for a girl — “A male under the age of seventeen, and a female under the age of fourteen years, are incapable of contracting marriage.”5
• The age to marry without parental consent was 21 for a boy and 18 for a girl — “If the male intending to marry be under twenty-one, and the female under eighteen years of age, and have not had a former wife or husband, the judge of probate must require the consent of the parents or guardians of such minor to the marriage.”6
Three different things, three different ages, not to be confused or intermingled.
Part one: the criminal law and the age of consent.
Part two: family law and the age to consent to marry another person.
And the third part: the age at which you don’t need anyone else’s consent to marry.
Cite/link to this post: Judy G. Russell, “The third part,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 11 June 2021).
- Judy G. Russell, “Same not same,” The Legal Genealogist, posted 10 June 2021 (https://www.legalgenealogist.com/blog : accessed 11 June 2021). ↩
- Stephen Robertson, “Age of Consent Laws–Table,” Teaching Module, Children & Youth in History, Center for History and New Media, George Mason University (https://chnm.gmu.edu/cyh/ : accessed 10 June 2021). ↩
- See ibid., Stephen Robertson, “Age of Consent Laws–Introduction.” ↩
- §4306, “Carnal knowledge of female under ten years of age,” in Wade Keyes et al., compilers, The Code of Alabama 1876 (Montgomery : Barrett & Brown, State Printers, 1877), 913; digital images, Google Books (https://books.google.com/ : accessed 11 June 2021). ↩
- Ibid. at 641, §2672, “Age required to give validity to a marriage.” ↩
- Ibid., §2678, “Consent of parents, &c., when required.” ↩