Inventing a ‘Lesbian Age of Consent’? The History of the Minimum Age for Sex between Women in the UK
| Date | 01 September 2002 |
| Published date | 01 September 2002 |
| Author | Matthew Waites |
| DOI | 10.1177/096466390201100301 |
| Subject Matter | Articles |
CONSENT’? THE HISTORY OF
THE MINIMUM AGE FOR SEX
BETWEEN WOMEN IN THE UK
MATTHEW WAITES
South Bank University, UK
ABSTRACT
This article analyses historical and contemporary debates over age of consent legis-
lation regulating sex between women in the UK. A minimum age for sexual activity
between females was created by the Criminal Law Amendment Act 1922, which
removed ‘consent’ as a defence to the offence of ‘indecent assault’ against a girl under
the age of 16, yet prosecutions remained extremely rare until recent years. The article
analyses parliamentary debates surrounding the creation of this legislation to investi-
gate whether and how sex between females was represented. It then examines how
the subject was addressed at a series of historical moments when age of consent laws
were subject to official review. It is argued that the recent invention of a ‘lesbian age
of consent’ in popular and professional legal discourse signals changes in the ways in
which the law is interpreted and implemented. In conclusion, the article argues that
while a standardization and equalization of the law applying in male–female,
male–male and female–female contexts is desirable, an appreciation of the specific
form and history of the age of consent applying to sex between females raises particu-
lar questions concerning the impact of reformulating age of consent laws.
INTRODUCTION
FORMOSTof the 1990s, the so-called ‘gay age of consent’ was the highest
profile issue in British lesbian and gay politics. Intense campaigning
activity and media coverage surrounded the reduction of the legal age
for sex between men from 21 to 18 years in 1994, and subsequent attempts
to achieve an equal age of 16 (17 in Northern Ireland) from 1998 onwards.
A series of impassioned parliamentary debates saw struggles for equality
reach centre stage in national politics. An equal age of consent was finally
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attained with the passage of the Sexual Offences (Amendment) Act 2000 on
30 November 2000 (Waites, 1999a, 1999b, 2001, forthcoming).
The age of consent for sex between women, however, was extremely rarely
the subject of attention during these lengthy conflicts. Though in part this
was attributable to the legal age already being 16, this marginalization and
neglect also reflected the continuing social invisibility of lesbianism. Ambi-
guity persisted among politicians and the general public concerning the
existing form of the law regulating sex between women, which was in various
ways misrepresented. Yet intriguingly the concept of a ‘lesbian age of
consent’ was increasingly used by those engaged in public debates.
Recent conflicts over the ‘gay age of consent’ thus pose a series of ques-
tions about the law regulating sex between women. How is the law formu-
lated, and is there such a thing as a ‘lesbian age of consent’? Was it originally
intended to address sex between women? What has been the rationale,
historically, for the way in which the law is formulated? And, particularly in
the light of the current Home Office review of sex offences, how should the
law address this issue henceforth?
Existing academic work does not answer these questions, despite the
growth of research on lesbianism and law (e.g. Robson, 1998). The general
lack of legislation regulating sex between women in the UK has led feminist
discussions of lesbianism in relation to politics, the state and citizenship in
the UK to concentrate on other issues, sometimes not commenting on sex
offences (e.g. Wilton, 1998: 181–204) or the age of consent for sex between
women (e.g. Ainley, 1995: 14–29). Even in critical sociolegal scholarship on
sex offences and homosexuality which is informed by feminist and pro-
gay/queer perspectives, the existence of an age of consent law applying to sex
between women usually goes entirely unmentioned (e.g. Weeks, 1977, 1989;
Warner, 1983; Edwards, 1996: 60–1; Doan, 1997; Oram and Turnbull, 2001:
155–8). Some commentaries have been misleading: for example, Nigel
Warner’s discussion of the law, stating ‘Sexual relationships between lesbians
have never been criminal except in the case of members of the armed
forces . . .’ (Warner, 1983: 78). In the rare instances where lesbian and feminist
scholars have begun to research the issue (Edwards, 1981; Faraday, 1985,
1988) their commentaries require integration and development, both empiri-
cally and theoretically.
This article therefore seeks to analyse historical and contemporary debates
over age of consent laws regulating sex between women. It synthesizes
existing research, presents new empirical evidence, and offers a theoretical
analysis of changing rationales for the law. The article begins by outlining the
history of age of consent laws applying in heterosexual and male homosexual
contexts. It then proceeds to analyse a series of historical debates over age of
consent legislation regulating sex between women, examining the prevailing
rationales operating in each case. Hence the article contributes to the
developing body of research recovering the history of lesbianism and law
(Oram and Turnbull, 2001: 155–77). The theoretical analysis focuses upon
the changing ways in which the age of consent for sex between women has
WAITES: INVENTING A ‘LESBIAN AGE OF CONSENT’?
325
been positioned in terms of ‘equality’ or ‘difference’ in relation to hetero-
sexuality and male homosexuality. In doing so it illuminates wider political
dilemmas for those engaging critically with gender, sexuality, childhood and
the law.
AGE OF CONSENT LAWS: AN OVERVIEW
It is appropriate to begin by outlining the general framework of age of
consent laws. Yet although the concept ‘age of consent’ circulates in legal
contexts and public debates, framing and mediating understandings of the
law, it is not present in the law itself. Various official reviews of the law and
academic and activist critics have at different times objected to or circum-
scribed use of the term ‘age of consent’, which has an interesting and reveal-
ing specific history (Moran, 1996, 1997). However, as I have argued elsewhere
(Waites, 1999a), it is a term which has in recent decades been used with a
broad reference in public discourse to encompass diverse forms of legislation
applying to a wide range of sexual acts. This is also clear from examination
of debates in the early 20th century, discussed below. It can therefore be used
as a general term to refer to laws that prohibit children’s or young people’s
involvement in ‘assenting’ and/or ‘consenting’ sexual behaviour below a
particular age – where ‘assent’ is used to suggest a less complete, decisive,
intentional action than consent.
The Offences Against the Person Act 1861, a landmark piece of legislation
codifying criminal law applying in England, Wales and Ireland, codified the
legal age for a female to engage in sexual intercourse (vaginal penetration with
the penis) with a male at the age of 12. The age for sexual intercourse was
then raised to 13 by the Offences Against the Person Act 1875 (though not
in Scotland), then raised again to 16 throughout the UK, by the Criminal
Law Amendment Act 1885. Section 5 states:
Any person who:
(1) Unlawfully and carnally know or attempts to have unlawful carnal know-
ledge of any girl being of or above the age of thirteen years and under the age
of sixteen years; or
(2) [. . .] shall be guilty of a misdemeanour [. . .].
The age of consent to sexual intercourse was therefore legally codified in a
highly gendered form reflecting a dominant form of heterosexuality (cf.
Jackson, 1998). The male, for whom no minimum age was provided, was
assumed to have agency and be responsible, while the female was assumed
passive and therefore ‘innocent’ (Waites, 1999a: 113–42). The increases in the
age of consent to sexual intercourse in 1875 and 1885 took place in the
context of popular campaigns by the Social Purity Movement, particularly
motivated by concerns over child prostitution, which inspired a widespread
tightening of sexual regulation in late Victorian society (Walkowitz, 1992;
326
SOCIAL & LEGAL STUDIES 11(3)
Bland, 1995; Waites, 1999a: 120–51). The age of consent to sexual intercourse
has remained at 16 until the present day.
All sexual behaviour between men was illegal as ‘gross indecency’,
‘buggery’ (England and Wales only) or ‘sodomy’ (Scotland only) until the
partial decriminalization of consensual male homosexual acts in private by
the Sexual Offences Act 1967, applying in England and Wales. The creation
of a male homosexual age of consent at 21 was subsequently replicated in
Scotland in 1980, and in Northern Ireland in 1982 (for full discussion of the
legal framework and the rationale for the age of consent see: Moran, 1996,
1997; Waites, 1999a: 152–85; McGhee, 2001). Buggery and sodomy laws also
outlawed male–female anal intercourse.
However, aside from vaginal and anal intercourse, and all sex between men,
other forms of sexual behaviour have a different history of regulation. Acts
such as oral sex, masturbation of another person, kissing and other forms of
behaviour considered sexual were subject to less prohibitive forms of regu-
lation during the late 19th and early 20th century. These encompassed not
only male–female behaviour, but also sex between females. The Criminal
Law Amendment Act 1880, a piece of legislation applying only in England
and...
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