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Some laws on child sexual abuse enacted by the end of the Middle Ages

Posted by Peter Frouman on January 31, 2008 at 02:55:24

In Reply to: Re: Society is evolving, in many regards for the better posted by Thinker on January 30, 2008 at 15:23:23:

"Laws designed specifically to protect children from sexual abuse appeared by the end of the Middle Ages"

I must take exception to your statements that "pederasty was widely accepted even up until the early 1900s" and "pedophilia although regarded as
unpleasant, until a few decades ago, wasn't the big deal it is now."

It certainly does depend on what ages and areas of the world you are talking about as well as what types of child sexual abuse but I think there is quite a bit
of evidence demonstrating that many forms of child sexual abuse were regarded as serious crimes a long time ago.

While societal attitudes and laws regarding child sexual abuse have changed throughout history and there is still a lot of progress to be made (such
as abolishing all criminal and civil statutes of limitations for child sexual abuse), there were laws making child sexual abuse a crime (punishable
in some cases by death) hundreds of years before the Children of God was founded in 1968.

Here is some information (regarding laws prior to the 20th century) from "Prosecution of Child Sexual Abuse in the United States" by John E.B. Myers,
Susan E Diedrich, Devon Lee, Kelly Fincher and Rachel M. Stern in Conte, Jon R. Critical Issues in Child Sexual Abuse Historical, Legal, and
Psychological Perspectives. Thousand Oaks, Calif: Sage Publications, 2002.


Forcible rape is common throughout history (Brownmiller, 1975), and prosecution of rape is nearly as old as the offense itself (Brundage, 1987).
Thus, rape is dealt with harshly in the Code of Hammurabi, the Bible, Greek and Roman law, and the Visigothic Code (Drapkin, 1989; Phipps, 1997). In
England, rape was prosecuted long before William crossed the Channel in 1066. "Rape was from time immemorial a felony" (Neville, 1957, p. 223).
Modest numbers of rape prosecutions occurred throughout English history (Carter, 1985; Hale, 1736/1971; Pollock & Maitland, 1968). Laws against
forcible rape applied to children as well as adults.

Laws designed specifically to protect children from sexual abuse appeared by the end of the Middle Ages. These laws stipulated that children lack
capacity to consent to sex. "Consensual" intercourse with an underage girl was rape (Laiou, 1993, p. 125). Phipps (1997) writes,

'The first significant discussion of sexual crimes against children occurred during the maturation of canon law in the Middle Ages. Teachers of
canon law taught that sexual intercourse with a girl who was under the age of consent to marry was rape even if the girl consented and failed to
protest the intercourse… Canon law from the fourteenth to fifteenth centuries continued to prohibit sexual intercourse with children. (p. 8) .'

In England, two influential acts of Parliament dealt with sex offenses against children. First, in 1275, the Statute of Westminister I provided,
"The King prohibiteth that none do ravish, nor take away by force, any Maiden within Age, neither by her own consent nor without." Ravish meant rape.
"Within age" meant girls under 12, which was the "age of consent to marriage" (Coke, 1671/1979, p.163).

The second important child protection law was enacted in 1576. The Statute 18 Elizabeth provided, "If any person shall unlawfully and carnally
know any woman child under the age of ten years, every such unlawful and carnal knowledge shall be felony."

On this side of the Atlantic, American law always prohibited forcible rape. In addition to laws against forcible rape, American law prohibited
statutory rape. Early statutory rape laws were based on England's Statute 18 Elizabeth. For example, an 1828 New York law forbade carnally knowing
any female child under the age of ten years" (Lewis, 1848, p. 557). Similarly, a Massachusetts statute punished with death anyone who "shall
unlawfully and carnally know and abuse any female child, under the age of ten years" (Lewis, 1847).

Turning from legislation to the courts, prosecution for forcible rape of children occurred during the colonial period (Chapin, 1983; Wiliams,
1993) and the 19th century (e.g. Brauer v. State, 1879; State v. Gray, 1860). Statutory rape prosecutions occurred as well (e.g., People v. Benson,
1856; People v. Castro, 1882).

A useful way to study 19th century prosecution of child sexual abuse is with books on criminal law. Joel Bishop (1814-1901) was one of America's
leading 19th-century commentators on criminal law. The first edition of Bishop's influential treatise titled The Criminal Law was published in 1856.
It thoroughly analyzed forcible rape, citing numerous court decisions, some involving child victims. In addition to forcible rape, Bishop's first
edition discussed statutory rape. The entire discussion of child sexual abuse, however, appeared under the heading of rape; it did not discuss child
sexual abuse that did not qualify as rape. By the third edition of Bishop's treatise in 1865, the author included a new section titled "Carnal Abuse
of Children" (ss 1088). Interestingly, however, in 1865, Bishop wrote that there were very few court decisions on "carnal abuse of children."

During the 19th century, American law clearly prohibited forcible and statutory rape of children. Prosecution of these crimes occurred at a modest
pace. In most 19th-century prosecutions for forcible and statutory rape, the accused was a stranger or acquaintance. Prosecution of incest occurred,
but was not common.

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