From : The Legacy of Colonialism: Law and
Women’s Rights in India (Varsha Chitnis and Danaya Wright)
IV. Reforms in Age of Consent Law
One of the legal reforms in India that most clearly followed upon the efforts of British reformers was “age of consent” law—law governing the age at which adolescents can legally consent to sexual intercourse. Nineteenth century age of consent laws in England and India arose in the context of prostitution and child marriage, respectively, which were social issues directly linked to Victorian notions of domesticity and sexual restraint. The different cultural contexts, however, show how a concept as simple as age of consent takes on multiple meanings when different groups are vying for control over sexuality and for the power to define the appropriate contours of the family.
In England, prostitution threatened the sanctity of the middle-class home and the Victorian wife’s hold on reproduction. In India, the child-bride, an upper-caste
phenomenon, brought colonial norms of sexual restraint and family structure into conflict with native claims over the right to define the private realm of the
family. In the end, however, British women cared most about age of consent, because both prostitution and the child-bride threatened their power to define
the parameters of sexual access.
In the summer of 1885, William T. Stead of the Pall Mall Gazette published an exposé on the foreign trafficking of women and the entrapment of children into prostitution—one of the most successful pieces of scandal
journalism published in nineteenth century Britain. In The Maiden Tribute of Modern Babylon, Snead recounted the purchase, for five pounds, of young rural virgins for sale to satisfy the lusts of the decadent aristocratic class.
Judith Walkowitz explains: The series had an electrifying effect on public opinion: By the third
installment mobs were rioting at the Pall Mall Gazette offices . . . . An enormous public demonstration was held in Hyde Park (estimated at 250,000) to demand the passage of legislation raising the age of consent for girls from thirteen to sixteen. Reformers of all shades were represented on
the dozen or so demonstration platforms. For one brief moment, feminists and personal-rights advocates joined with Anglican bishops and socialists to protest the aristocratic corruption of young innocents.
The Maiden Tribute was inspired by Josephine Butler, who had been fighting the Contagious Diseases Acts, and Catherine Booth of the Salvation Army. Together they had been unsuccessful in getting Parliament to deal
constructively with prostitution. In their reform pamphlets and rhetoric, they focused heavily on the sexual victimization of women, and they were uncomfortable with assertions of female sexual agency. As Walkowitz
explains, “[s]hifting the cultural image of the prostitute to the innocent child victim encouraged new, more repressive, political initiatives over sex.”
Victorian reformers were consistently conflicted in their attitudes toward female sexuality, and The Maiden Tribute provided a broad cultural discourse in which to critique male sexual license, upper class privileges, and the failings
of an unresponsive Parliament without really addressing women’s sexual agency. The exposé mobilized the population behind the issues of “white
slavery” and aristocratic license in a way that reformers, lawmakers, and journalists could not have imagined before that summer.
Notably, the core of their concern was the male predator, generally the aristocratic male, whose
open access to working-class girls was a time-honored prerogative. For many, prostitution was seen as a social disease caused by economic woes among the
rural peasantry who became vulnerable to the licentious decadence of the ruling elite. The solution was to raise the age of consent for sexual intercourse from
thirteen to sixteen, to reduce the victimization of girls who were believed to have little or no control over their sexual conduct.
There can be no doubt that the uproar over The Maiden Tribute played a role in the reform movement in India to change the age of consent there as well. In 1891, an Age of Consent Bill was introduced to raise the age of consent from
ten to twelve. The bill was spurred by the publication of a rather heinous case involving the death of a child-bride of ten or eleven who was killed by a brutal
sexual encounter with her thirty-five year old husband, another image of male sexual license run amok. The Age of Consent Bill, however, created strong opposition from the native population because it ultimately interfered with the
rights of the native male over his wife.
Because the politics of colonial masculinity had constructed an autonomous sphere for indigenous masculinity—the private sphere of the home and family—colonial rulers were caught between the demands of native males
to keep out of the Indian home and the demands of British feminists to save Indian women. To counter the claim that they were interfering in the private realm of the Indian family, the colonial and reform authorities maintained that
the Age of Consent Bill was not about age of marriage, but rather about an age at which sexual intercourse is appropriate. Supposedly, the colonial state was
not interfering in the autonomous Indian family but was, instead, protecting young girls from sexual acts that could be physically harmful. But as the
indigenous populations quickly pointed out, sexual intercourse within marriage is not rape. If the age of consent was raised without changing the age of
marriage, the state was introducing the possibility of marital rape within Indian families at a time when England itself did not recognize the crime.
It was not an accident that the debate over age of consent in India formed around the issue of marriage, while in England it formed around prostitution. And clearly, the concern was not for the welfare of the child-bride in India as legislation against child marriage was not passed until 1929, nearly forty years later. The issue that gripped the English imagination was aristocratic male
license, while the underlying issue in India was colonial interference in the sexual relations of a husband and his child-bride.
Age of consent arose in the context of prostitution in England because prostitution threatened efforts to curb sexual excess—a task taken on by Victorian wives, clergy, and middle-class men who equated sexual restraint
with moral and civil superiority. These groups generally linked social stability with domestic stability, which they defined as compliance with norms of sexual
restraint. Men and women were expected to postpone sexual intimacy until marriage and then to limit it to procreative purposes, overcoming their desires by channeling their energies into other arenas such as: work, church, or
charitable endeavors. Child marriage was not considered a problem because the vast majority of couples married in their twenties, and it was the Fleet marriage or elopement that captured the British imagination. Arranged marriages, while not unheard of, were certainly criticized in the literature of the day.
It was the prostitute, however, that most threatened the English wife’s control over her husband’s sexuality.
Most English women accepted the sexual double standard and separate spheres, so marriage for them was not problematic. But everything about Indian child marriage was wrong to Victorian women and men. The brides were too young; the marriages were arranged without regard to the wishes of the woman; and her vulnerability made it unlikely that she would be able to stand up to her older husband if he should demand forced or unnatural sex acts.
While Victorians had their own issues with sexuality, pedophilia and rape crossed a line that most felt comfortable drawing, and the Indian child marriage looked an awful lot like both. In many ways, therefore, British men and women
simply wanted to protect these young girls from the same kind of sexual license they feared in The Maiden Tribute. But that was much more difficult when it came in the form of legitimate marriage and accepted socio-religious customs.
By raising the age of consent by a mere two years, from ten to twelve, the colonial authorities appeared to be taking action when, in reality, they did very little to protect young girls. But as with age of consent reforms in England, the
law ultimately forced a wedge into the absolute dominion of men over women by asserting that women should not be forced into marriage or sexual relations and should have some say in their domestic lives.
From the perspective of the colonial rulers, interference in Indian family and religious principles was to be avoided so long as those principles did not enrage the British public, as sati, child-brides, and polygamy did. They also
did not want widows or single women falling on the welfare of the parish or the state because women generally were to be under the dominion of a man. So, as far as the colonial rulers were concerned, they had little to gain and much to
lose by interfering too much in the Indian family and marriage. Similarly, native elites had much to gain by retaining control over the Indian family and
marriage, particularly by retaining control over women’s sexuality and property. Between these two groups of men, therefore, there was little incentive to upset the cultural norms, and it is not surprising, therefore, that it
took another forty years before child marriages were outlawed.
British feminists, on the other hand, were deeply concerned about the infection of the British family from diseased prostitutes and sexual promiscuity, controlled in part by the Contagious Diseases Acts and age of consent laws. In
order to maintain their own domestic control and status as moral superiors, they needed to enforce Victorian norms of the nuclear family and sexual restraint.
They focused on the prostitute at home because it was the prostitute who infected their husbands, who then brought the disease into the sanctity of their English homes. The threat of venereal disease was a constant image in the
feminist press of the Victorian period.
In India, however, the threat of sexual perversity pervaded marriage itself and gave rise to fears that male expectations about pedophilia and rape would make their way northward to threaten British marriages. The feminists focused in Britain on prostitution and in India on marriages because both threatened the Victorian marriage at home. While neither English men nor Indian men felt a great incentive to interfere with the regulation and examination of prostitutes under the Contagious Diseases Acts, the age of consent for sexual intercourse, or the age of marriage, these laws all threatened to weaken British women’s control over the family sphere and the moral boundaries of sexual behavior by infiltrating the sanctity of the British home.