16 Going on 17

Age-of-consent laws, explained.

Silvio Berlusconi

The Guardian reported last week that Italian Prime Minister Silvio Berlusconi is “not the slightest bit worried” about his upcoming vice trial. He stands accused of paying for sex with Karima el-Mahroug (aka Ruby Heartstealer), a 17-year-old prostitute. Confusingly, the age of sexual majority in Italy is 14 *, and prostitution is actually legal—but only with sex workers 18 years and older. All these numbers standing like bouncers at the bedroom door raise the question: When did the concept of an “age of consent” come about?

Medieval England. The first age-related sex law on record appears in an English statute from 1275, which made it punishable by two years’ imprisonment and a fine “at the King’s pleasure”  to “ravish” a “maiden within age,” regardless of her consent. “Within age” meant younger than 12, the accepted age at which a woman could marry, as determined by the fact that most girls passed their menarche, or first period, at about that time.

The 1275 statute and comparable laws from that era were not predicated on the desire to protect female children per se. Rather, their chastity was at issue, since defiled women were not considered fit to marry. That this social code motivated the first age-of-consent laws is made clear by the fact that girls “known” to be promiscuous were exempt from protection—once ruined, fair game.

Since that time, age-based consent regulations have been established around the world for a number of reasons: to protect the virginity of women from predatory men, to keep predatory women from entrapping older men, to limit sex before marriage, to disrupt colonial subjects’ traditionally young marriage practices (e.g. the British in India), and, more recently in the U.S., to combat teenage pregnancy. Unsurprisingly, America’s consent tradition began as a take on the British model, setting the initial age at 10. Individual states set the bar from 10 to 12 until the turn of the 20th century, when moral-reform movements successfully lobbied state legislatures to increase the age to 16 or higher.

Currently, ages of consent in the U.S. range from 14 to 18, while internationally the spread is slightly larger, from 12 to 18. Most Western nations set the bar at around 16, but Spain is a notable exception, at 13. In some countries—especially those controlled by religious orders—legal ages of consent matter less than cultural norms, such as a strict ban on sex outside of marriage.

The most common rationale for consent legislation in the West today is the desire to protect children and teens—who are now understood to undergo important psychological development well after they’re biologically capable of sex—from confusing and possibly abusive relationships with more powerful adults. Of course, the line that separates child from adult has never been clear, and so fudging the divide is sometimes required to avoid absurdity. Situations where a 17-year-old boyfriend has been charged with “raping” his 15-year-old girlfriend have led many state legislatures in the U.S. to establish “Romeo and Juliet laws,” which allow for exceptions or lesser punishments in cases where the couple is close in age.

One major modern development in consent law has been the attempt to remove an implicit gender bias in which courts imagine that boys are always active aggressors while girls are passive victims. Male (statutory) rape has become more accepted as a real problem because of high-profile cases like Mary Kay Letourneau’s, but the law lags behind: In some states (such as California), a teenage boy who impregnates an adult woman while being statutorily raped is required to pay child support.

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Explainer thanks Kevin Lamb of Yale Law, and Joseph Fischel of the University of Chicago.

Correction, Feb. 23: This piece misstated the age of consent in Italy. (Return  to the corrected sentence.)