Betwixt The Sheets: The History of Sex, Scandal & Society - Age of Consent: Medieval Meaning, Victorian Scandals & Modern Relevance

Episode Date: October 6, 2023

While the age of consent has fluctuated over time, it reveals some fascinating and enlightening things about how we view sexuality in society.Today's guest, Laura Lammasniemi, professor at Warwick School of Law, takes us back in time to explore the many ways these laws have changed, and why they have just as much relevance now as they ever have done.How did Medieval England interpret ideas of consent? Which Victorian scandal led to consent laws we keep in place today? And why have girls consent laws historically differed from boys?Let's go Betwixt the Sheets to find out.This episode was edited by Siobhan Dale and produced by Stuart Beckwith. The senior producer was Charlotte Long.Discover the past on History Hit with ad-free original podcasts and documentaries released weekly presented by world renowned historians like Kate Lister, Dan Snow, Suzannah Lipscomb, Lucy Worsley, Mary Beard and more.Get 50% off your first 3 months with code BETWIXT. Download the app on your smart TV or in the app store or sign up at historyhit.com/subscribe.You can take part in our listener survey here. Hosted on Acast. See acast.com/privacy for more information.

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Sign up to join me in locations around the world and explore the past. Just visit historyhit.com forward slash subscribe. Hello, my lovely bit twixters. It's me, Kate Lister, here with you to settle into this podcast once again. But before we can do that, before we can proceed any further together, I have to give you your fair do's warning. You knew that was coming and it will always be coming. Here it is.

This is an adult podcast spoken by adults to other adults in an adultery way about a range of adult subjects. And you should be an adult too. And now that you've got that warning, and now that you know what is coming your way, you can't even get mad at us if you happen to get offended, because fair do's, we warned you. Whenever you are studying at the history of sexuality, one of the key points that you have to try and unpick and examine

is the issue of consent. Because if you don't have consent, or if consent is compromised, then you're talking about very, very different. acts indeed. Many dynamics play into notions of consent, age, gender, but perhaps most important of all, power dynamics. But how have laws around consent changed throughout history? What do they tell us about how we viewed sexuality in the context of those times? And which Victorian scandal shape the laws around consent, the ones that we still live by today? Well, I am ready to get

consensually betwixt the sheets if you are. Let's do this. What do you are a quality man? Oh, money, of course. You're supposed to rise when an adult speaks to you. I make perfect copies of whatever my boss needs by just turning a knob and pushing the fire. Yeah, social courtesy does make a difference. Goodness, I feel for them. Goodness had nothing to do with it, dearie.

Hello, and welcome back to Betwixt the Sheets, the History of Sex Scandal in Society. With me, Kate Lister. One thing I truly love about presenting this podcast is the feedback that we get from you guys. You absolutely gorgeous, marvellous betwixt as you. It is truly, truly magnificent, often completely bonkers, sometimes fantastically filthy, but always really, really good. And it was just over a month ago that one listener got in touch with us to suggest today's episode's subject. And I'm going to hand it over to them to explain why.

Hello, my name is Ruth. Long time listener, first time requester. I am requesting an episode about the laws on the age of consent. It's something I've always wondered about. I've heard lots of different rumours over the years about what laws have come into play and when. For instance, that although there is an age of consent for gay sex, there's never been one for lesbian sex. So it'll be an interesting episode to hear about. It is wonderful to hear from you, Ruth. Thank you so much for your suggestion. It is an absolute belter of an idea. And you do raise a very important. really good question and I hope that we're going to be able to answer that for you later in the episode. An episode which spans the first consent laws in the medieval era and takes into account

our concepts of virginity, gendered sexuality and how all of this applies to same-sex relationships as well. I am ready to get consenting if you are betwixters. So hello and welcome to betwixtor sheets. It's only Laura Lamasneemi. How are you doing? Hi, Kays. I'm doing very well. Thank you. How are you doing? Well, I'm beyond thrilled to be talking to you today because we are talking about the history of the age of consent. And consent has really been in the news lately, hasn't it? It really has been. I think this is the first time people are interested in age of consent in a long time and also history of age of consent. Really?

Yeah, I think so. And the facts how old the history of age of consent is and how hasn't been reviewed. I think all of these things have come up lately. So what was it that brought you to this area of research? What was it that made you research consent laws and the history of it? That's a good question. I think I started, so years ago I was doing my PhD and I was looking at history of trafficking in women.

Wow. And then through that, sort of thinking about trafficking women, thinking about sex work, thinking about what kind of sex people could and could not consent to, It's really through there that I started to look at history of sexual offences. And then AIDS of Consent plays a huge part in history of sexual offenses. So it's sort of through that kind of earlier work that I was doing around it, that I started to think about these questions of capacity and consent. It seems like such a modern issue is consent and at what point consent can be given and withdrawn

and how age plays into that. It seems like it's a very modern interest that we've got. But I'm going to guess that's not the case that throughout history there have been concerns about how old is too old or what age. Or is that not the case? Is it just throughout history people have just been like whatever you fancy? No, I think history people really did think about this and they thought about this a lot, particularly in 19th century. So I think for most of history, people have been quite happy with AIDS of consent somewhat coinciding with puberty. Okay. And actually in most countries in Europe, there's been sometimes.

fixed laws, sometimes not fixed laws, but age of consent really sort of normally coincides with puberty. So it's been around sort of 12 to 13 for girls and normally a bit higher for boys. But then in 19th century, there was huge amounts of focus on age of consent, particularly late 19th century. And 8th of consent changed multiple times in 19th century and then was finally fixed at 16 in 1885. But this was really something that people were talking about. It was newspapers, there were campaigns around it, scandals. So this was a big part of sort of public discussions in that period as well. We'll get to the Victorians because they had a lot to say about this. But if we were sort of to start around about the medieval period, I have read that the

age of consent in medieval Britain, Europe was 12. Is that right? Or is that just something you read on the internet? No, that's right. We're sort of set in canon law and then in common law at 12. And at that period, I think it's kind of coincided the idea of. of puberty. And at that time, AIDS of Consent was 12 for both sex as well as for marriage. And there was this idea that, particularly when it came to marriage, that if two people are able of conceiving a child, they should not be denied the right to marry. So that was part of the reason why I think remained quite low in the period. So were the laws specific to what we would call sexual intercourse, or what did they count as sex, I suppose? This is a very good question. So,

there's a lot of ambiguity actually around this. So in the very early law, sort of when we're thinking about the definition of rape and sort of way comes from Roman law, there's a bit of ambiguity about what that actually means and about whether it's sort of abducting a woman or whether it's seizing a woman and what kind of intercourse. And actually the ambiguity about what did actually intercourse mean, that remains in law till very late in the 20th century. And there are these questions around, does they need to be penetration, does they need to be what they call emission of seed? Wow.

And all these things like, there's a lot of ambiguity throughout history of what sex actually meant. Wow. Did they settle on any definition? I mean, I suppose it's the definition that we've got now, isn't it, is that you put a penis into something? Yeah, that's right. So I think that definition becomes quite settled in, really in the latter part of 20th century. And now it's very clear. The law is very clear on what it is.

It sort of explains everything. But I think the ambiguity was still there, certainly in the early past of 20th century. Then now any sort of penetration which constitutes intercourse. Wow. I have read that in the Middle Ages, rape or raptus did include abduction. And you just touched on it there. Could you explain a bit more about that? Because I think it's everyone's, well, not everyone's favorite King Arthur author,

but Thomas Mallory was accused of Raptors. And his defenders are always quick to say, oh, but it might just be that you kidnap somebody. So that's fine. I think the reason why there's a bit of ambiguity there is that, well, the term itself, raptors, it could really mean a number of different crimes. And it also covered a number of different crimes dealing with property, such as Caesar or confiscation or robbery or kidnapping or then actual rape. And when you're looking at these law reports from that period, they never explain.

They never actually say what happened in the case or so on. Really? So when you're reading about rapture, it could actually mean a number of different things. and you kind of need to figure out from the context what it could have met in that particular case. But if you're looking at medieval law reports, there's no way of saying 100% for certain whether a woman was sexually assaulted,

whether she was kidnapped, and you just need to sort of make a guess, as opposed, based on the context on what might have happened in the case itself. Why do you think they did that? Is there a reason that they might not have actually been explicit with what happened? Was it like a modesty thing? Or was it just bad reporting?

I think maybe a bit of both. And I think the idea of modesty, it really stays all the way through in 19th century, even in early 20th century. So when you're reading law reports, even from 100 years ago, they rarely actually use the word rape. They never used the word in the course. And there's a lot of euphemisms. You could read a whole law report of things that actually were said and done in the court.

And they would say things like the accused entered the room of the complainant. Wow. And that's it. And then you sort of need to figure out might have happened based on the charges or the sentencing. But the reporting is very full of euphemisms. And I think particularly newspapers who often then replicated these reports, they never used actual any sexual terms at all. Wow. And I think that, particularly 19th century, that's more of a modesty thing.

When we're talking about ages of consent, there does seem to be quite a gendered view on it, especially we're talking about something like taking a virginity. or the internal concept that you can take someone's virginity, seems to be very gendered. And I'm interested in you said there that there were different ages for men and women. Why was that? Why would they say, well, they can consent when they're 12,

but they clearly can't consent until they're 16. What was that? Oh, I think there's a number of different things that feed into this, but I think more than anything, is this idea of how do we perceive women's sexuality and girls' sexuality and how do we see boys? And I think there was always this idea that women's sexuality and virginity more than anything, the women's virginity have to be protected. Okay.

And that it has to be protected from bad sex or one kind of sex or pre-marital sex. So there was often this idea that girls had to be protected from sex and from being seduced by law. Whereas for men, there was actually no age of consent set for sex outside marriage at all. Oh. Until much later into the 20th century. And there was this idea, I suppose, that men's sexuality was something that was natural and it was constant and it didn't need to be protected in the same way. Boys didn't need to be protected in the way that girls needed to be. Because for men, it was a natural part of their life cycle.

I read that the age of consent for girls was lowered to 10 in 1576. Is that right? Yes. 10. So there are various different ages in different. texts. So we had the really early description from 1275, that kind of comes in a statute and that sort of stage in the books. But then there are these sort of writers, these big legal writers, and then some of them speak about eight of consent being 10. And I think this gets to the bottom

of what has been really the issue with eight of consent is that it just hasn't been that fixed. So we have different sort of big legal writers, big sort of common law traditions, taking a slight different approach to it. So you could have court cases where different kind of outcomes were hard and so on. So there's been a lot of ambiguity about age of consent, I would say throughout history until 19th century. When someone is deciding, actually, I think the age of consent should be 10, which to our modern ears sounds so bizarre. Was this about protecting children and people's bodies, or was this linked to property somehow and about the age that you could marry and enter into a legal contract?

I think it's probably a bit of all of those things. And I think above all, I think it's about just not having that much record in that period in sort of the 16th century, not having that much regard on the actual female child. It would have been more about thinking, when is it appropriate to criminalize men who might be having sexual intercourse with younger people. So it's much more about thinking about where the law sets those boundaries of criminalisation.

So I think it just shows this lack of regard of thinking about women at the core of it. It's all kind of a bit mad of people arguing between 10 and 12 and then going back and forward until about the 19th century, when things start to really change and there starts to be a really big social issue around child sexual exploitation, around consent, around what the legal law should be. Can you talk us through what was happening at the time? In the early 19th century, I think the age of consent was 12. Was it 12? Yeah, it was 12. So then it was pretty fixed at that 12, but still in sort of common law and in kind of law and the criminal laws around it hadn't really been clarified. And then there starts to be this bigger bush, I would say, sort of towards

end of 19th century. And I think overall it comes to this period where there's a lot of thinking about morality and whether criminal law should be doing more regulation of morality and issues of morality. And this is then when the discussions around age of consent really comes into the public consciousness, I think. And there's a lot of sort of big scandals and things around it. But then the law starts to change in the later part of 19th century. So first, it's raised, so this we are talking about here, we should say, sex outside marriage. So the age of marriage throughout 19th century remains 12 with parental consent. Wow.

Yes. Were there many people marrying 12 year olds in the records? Like was that a thing? No, not as many. So I think the marriage is, early marriage is rare. But it's still, there was this big consultation in late 19th century on age of marriage. And they said, well, still, we shouldn't deny marriage from a person who's able of conceiving a child. So age and marriage actually only is raised in 1929.

So until 1929, the age and marriage was officially 12 for girls. Wow. And with parents' consent. What about boys? So for boys, again, it's still a common law. So it was 14 in the period. And then in 1929, it's raised 16 for everyone, for boys and for girls. It's so bizarre to hear that, that in 1929, you could just marry a 12-year-old.

Yes, as long as the parents consented. As long as the parents consented. Wow. I'll be back with Laura after this short break. A really big case and a scandal that happened in the late 19th century. And it's one of the more interesting characters in Victorian scandal history. It was a scandal that became known as the maiden tribute of modern Babylon. And it was written by a journalist called William T. Steed,

who I think actually drowned on the Titanic. He did. He did. That just popped into my head then. Can you tell us who he was and what happened and how this impacted discussions around consent. So Stedd was this absolutely towering figure of Victorian media, I would say. He was known as this pioneering journalist and really in some ways, I would say, the father of Taploid Press. So he was the editor. He was writing for Ballmore Cassette at the time, but he was also

involved in a lot of things at the time, both in England and then also did some work in and around the British Empire later as well, until he then passed away early in the Titanic. as he said. So this man was hugely influential. He was also known as his moral reformer, a social reformer. So he was involved in a lot of social causes at the time. And he then really became interested in firstly child prostitution. So his first and foremost, his interest was in child prostitution. And he was worried that girls, particularly working class communities, were working too early in sex work. And he was convinced that there was just a huge issue, particularly in east end of London, where young girls, girls aged 13, 14, were being seduced and then

led into Brussels to work both in England and then sometimes carried away to Europe. So that's where he was sort of starting from. So what he did, he thought that age of consent should be higher. He was part of this bigger campaign to raise days of consent to 16. And as part of this, he wrote this big series of newspaper articles called The Maiden Tribute of Modern Babylon. And the name already sort of gives it a way. So we are talking about something that is really scandalous. It's quite titillating in the way that it's written.

So it was really meant to sort of cause an uproar and it did. And it was a five-parts newspaper series. And all of these stories, they were full of these lured tales of undary sex, girls who were being corrupted, girls who are losing their opportunity. He was telling about working class parents selling their children to middle-class men for sex. So it was really building this sort of a world of London underclass where under a sex was rife and men would just go in and out. Do you think that that was true?

Because I've read some of his work. And when he said that they were sort of lurid and sensationalist, they do come across that way. And when I was reading it, I was thinking, I'm not sure this is as much about moralising as it is about titillating readers in a weird way. And we kind of still do that today when you've got big sex scandals that hit the media. it's half about, yeah, we need to know. And it's also about here's as many gruesome details as possible.

Do you think that he was really interested in this issue or it was just a way to sell papers? I think he was interested because he did do a lot of work with some prominent women's campaigners at the time. The way that he went about it is as far as from women's rights approaches we can probably think of today. But I think he was genuinely interested in the social reform side of things. but also the way that these things were written,

they were incredibly antagonistic, particularly towards the working class communities. So there's this particular episode where he talks about how any given street in East London, you have at least a dozen mothers selling their children for sex work. Wow. And obviously these things didn't happen, the way that he was describing them to be happening.

So there's a lot of condemnation of the working class, particularly working class moms in this writing. And the way he writes, It's incredibly dissingating, like you say. And there are these subheadings like virgins unchanged and talks about the pain of losing a virginity. So this kind of really graphic level of detail that is almost pornographic comes through, I think,

throughout the series quite a lot. I don't want to say he's an investigative journalist, but I suppose he was. But he decided he was going to try and prove his theory, didn't he? Can you tell us what happened with Eliza Armstrong? Yes. So as part of this, his expose, as he called it, into the modern babble of London, he then decided to show how easy it would be to take a working class girl,

or buy a working class girl, as he said, and then make that girl disappear. Wow. And he said he wanted to show how easy it would be to do this, to show how all these girls are disappearing from East and into the Brussels of Europe. So what he did was he, with the help of some intermediaries, he contacted a woman who had a woman. the 13-year-old girl whose name was Eliza Armstrong. And he said in his repertoire that he told the mother that he wanted to buy her for immoral purposes.

The girl knew nothing of this at all. The girl thought that she was going into domestic service, and she was told that she was going into domestic service. So he then takes this girl away, gives her new clothes, puts her in a brothel overnight, and whilst she's in a brothel... A real brothel. A real brothel. A midwife comes and verifies that he's actually a virgin.

Oh dear. A step that I have no idea why this was a necessary step. But the midwife is brought in, verifies this virgin. And then the girl is shipped off to France where the Salvation Army is looking after her for quite some period of time. And then he wrote this story and he writes himself as this hero of saving Eliza Armstrong from what would have been an inevitable ruin. So in his story, the mother would have sold her anyway to prostitution. And in this way, the girl is safe. She's been looks after by Salvation Army.

no harm has come to her. And he sort of made himself this hero of the day by saving the girl from what would have been a worst destiny. Okay. That to me sounds pretty dodgy stuff going on here that a modern newspaper editor hopefully would look at that and go, no, we're not going to do that. So he really did effectively kidnap this young girl.

He really did put her into a brothel overnight without anyone's consent or knowledge. And he really did have presumably had her vaginally inspected by a midwife to prove something. Yes, he did. All of these things happened. He doesn't sound like a hero to me. He sounds like a bit of a dick. He does, but he never saw himself certainly. Then later on, he gets into trouble for doing this. But all the way through his career, his writings, he always says that he was in the right. And what he did was a great thing for the nation and he was protecting the young girls of the nation everywhere. So he doesn't

seemed that he did anything wrong to Eliza Armstrong or in the grand scheme of things. And Eliza Armstrong's mother came forward in the end, didn't she? Am I remembering that right? Because obviously, like a story in the national press that you've sold your daughter into a brothel. And if I remember, she came forward to go, no, I didn't. I didn't know what he was doing. They did change her name. So they did, in the newspaper, she was called Lily rather than Eliza Armstrong. But of course, people did know. And then the mother and her husband then started to look for her. And there are these letters of the mother and the stepfather of trying to find her. They're right in the Salvation Army in France.

They're trying to trace her all the way. And eventually then the girl is returned to England and she then returns to live with the parents. There is these interesting letters as well. So while she was there, she was writing letters, say, or she's being very well looked after and everything is going splendidly. But they're written, I've seen one of these letters. and they're written in this perfect English, which I'm assuming that a 13-year-old girl of the period

from her background might not have been written these letters entirely unassisted. I'd thought about that before, but I think that's a very safe conclusion to draw. What was the wider impact of Stead's work of this massive scandal? Did people read it and think, oh my God, this is awful, we need to act, or was there a backlash against it? Did people point out, hang on me, you still kidnapped a 13-year-old girl and had her vagina inspected by a random midwife? There was very little condemnation of, I think, of said at the time.

There were some sort of references to it, but I think more than anything, he was actually successful in what he wanted to do. So he was always clear that this was part of the campaign rate at the age of consent. And when people did read the newspaper articles, they were outraged. So this was the most widely circulated tabloid

or any sort of newspaper article of all of Victoria. in England. So this was hugely red. It was very influential. It actually sparked a mass protest into Hyde Park days later and people were demanding that the law was changed. And in the same year, the law was changed. So while there had been sort of long ongoing discussions about AIDS of Consent, I would say the maiden tribute was the catalyst that actually made the law change in the end. It's strange that it was focused on the age of consent after what he did. Because even if the age of consent was 16, I don't know if that would have made it all right to sell an unconscious girl into a brothel without her knowing what was going on. No, no, it wouldn't have been. And it would

have been a criminal offence even before that. But I think what he was trying to focus on in the ex-boset, as he called it. So there was a number of different things that were going on in the made an tribute. And in addition to this relatively horrendous story of what happened to Eliza Armstrong, he also then interviewed a whole lot of other young girls who said that were working as sex workers in East End of London. And he was using in their examples of 13-year-old girls, he was offering them some money to lose their virginity. And then he was offering them some money not to lose their virginity. And he was then using those girls as an example that show how, well, girls of this age, they just don't understand

what they're giving up. They don't understand the value of their virginity. They're using as a commodity, not realizing how this is the most. He actually said these words. This is. This is the most precious commodity a girl ever has. For him, he was still sort of talking about that 13-year-olds, 14-year-olds don't have their capacity to understand what they're giving up when they're giving up their virginity. Wow. Questionable methods? Yes.

Highly questionable methods. Highly questionable methods. I think he actually served three months in prison and thought he did. He did. And the midwife also served some time in prison. Really? She actually passed away. I found this notes.

I was doing some later research on sexual offenses. And I found her file from prison, and she actually died while she was in. Oh, that seems horribly unfair. I don't know how to feel about that, because maybe she shouldn't have been examining the genitals of a child in the middle of the night in a brothel. But at the same time, she did receive a harser penalty than he did. Oh, did she? Yes. I'd no idea the midwife was got for this as well.

I'm going to have to sit with that one to work out exactly how I feel about it. Questionable methods, true. Yes. but what he did was successful in the Criminal Law Amendment Act of 1885 the age of consent was raised to 16. Yes, so the age of consent was safe to 16 against a sex outside marriage. But still fine, 12 if you're in marriage. Yes, so age of marriage didn't change.

And because in the period, there was no such a concept as marriage or anything of that kind, then any sexual activity in a marriage was always going to be lawful. It's just bonkers, isn't it? Okay, so the age of consent is 16. And was that the same for boys as well? No. No, of course it wasn't. No, there's no age of consent for boys at this point.

No at all? No. So all the laws, all the focus is very much focused on girls at this point. And I should say there was also very much focused on, although the law says, obviously, girls more broadly age 16, the campaigns, the discussions, everything is really focused on working class girls. And there's very little concern around middle and upper classes. But the law says 16 for girls and has no mention. and a boys at all. How is something like that policed? Because that's an interesting question in and of

itself, is that, well, how do you police who is having sex with who and at what age? And that's still an issue that is very, very relevant and pertinent today and that people are still trying to get to grips with. How do you police something like that? That's a good question, particularly because in this period, police force wasn't as organized or as it is today. And effectively, I don't know how well this was then policed. So I had a good look at the... the cases that went to trial after 1885 and after the law was changed. And actually, most cases that made it to courts, the complainants in this cases were quite young, often under the age of 13.

So there weren't actually that many cases than dealing with what would have been sort of 14-year-olds, 15-year-olds or cases that would have been this idea of the seduction or young girls being seduced by older, maybe more wealthy men. these cases did not appear in courts at all. So if it was policed, it probably didn't make it to courts, or at least there's not much record of those. If this law is mostly about the age of consent with working class girls, because if you're a posh member of the aristocracy,

we'll marry you off at 12 and you'll be fine, I'm just wondering how that would have fared when these cases came to court at all, because if the defendant is a very young working class girl and the jury is all men and quite privileged men and the judge and the lawyers, they're all previous men. I mean, that doesn't sound like you would get a fair hearing anyway. No, I don't think you did. And what's interesting in this period is that actually, in most cases,

both the accused and the victim, they were both from working class communities. So there's very little use of courts by the middle classes and upper classes. I think it's something that they just didn't rely on the court system in the same way. And did working class girls get a fair trial? No. I think would be the short answer to this. Like the trials really show quite horrendous levels of prejudice against girls who were in these complainants in these cases.

Some of the discussions by the judges, by the medical experts, all these statements that have been preserved, they're really problematic. I bet they were. We spoke a bit about the age of consent for men and for boys. How does this happen with same-sex relationships? Because I remember when the age of consent in gay relationships, was lowered from 18 to 16. I have no idea when it was bought in at 18, though.

That would have been in the mid-90s. So when the law was changed in 1885, in the same law, actually, in the Criminal Amendment Act, they actually expanded criminalization of same-sex relationships, and they brought this particular section that deals with cross indecency. So this would be the law that, you know, we would have read about Oscar Wilde,

we would have read about Alan Turing. So all these men were prosecuted under this particular section of gross indecency. So in all of this period, same-sex sex-sex is just unlawful, and it's unlawful all the way until late 60s. And then when homosexuality is finally decriminalized after the Wolfenden Committee, then dates of consent for men in same-sex relationships is 21. So it's a lot higher than it was for girls at the time.

And then in mid-90s, it's brought from 21 to 18, And then it's only in 2001 that you have the same age of consent for straight sex and gay sex, every 16. What about lesbian sex? Did they ever get a look in? They seem to have flown under the radar. Yes, no one cares about lesbians. I think when we talk about criminal law, history of criminal law, no one goes about lesbians.

That's so strange. Yes. Caroline Derry is a wonderful historian from Open University. She's actually written a book about criminal law and lesbians. And I think it was very clear from there that this idea of lesbianism, it didn't even enter the lawmakers' consciousness, at least not in 19th century, not in the early 20th century that much either. So when we're talking about gross indecency, when we're talking about laws criminalizing homosexuality, they only apply to men. It's like they had no imagination that women could actually be looking to have sex with other women. When did it hit the statute books, lesbian sex?

When did they get an age? Do they have an age of consent? or maybe they still don't get recognized at all. Then overall, when the laws change, and they become less specific, it's more about perceptions when it comes to lesbian sex. So you do start to get some prosecutions in the mid-20th century onwards. And it's more about using the same laws,

but then sort of understanding the same laws in a slightly different way. So there was nothing in the laws that said, this wouldn't apply to lesbians. It's just that it was sort of beyond the scope of imagination, I suppose, of lawmakers and judges. I love that. That's just such a weird quirk in the British legal system. They couldn't even conceive of it. No, I think it's a sign of how male the legal system is. Yes. I suppose that brings us quite close to the modern day, really, and our ongoing issues around consent and the age of consent.

Do you see that changing anytime soon? Is there any thirst or need to address these laws again, in your opinion? That's a really complicated question. And in recent weeks, actually, there's been a lot of discussion around something goes staggered age of consent and whether people should be having one age of consent for everything or whether there should be multiple age of consent depending on what kind of sex it is or who you're having that sex with. But I think realistically, I don't see the age of consent for sex changing in Form 16 anytime soon. And I think the reason for that is that actually most people are having some kind of sexual experiences under the age of 16.

And so it would be unfeasible to criminalize it, further, race, ace of consent because it would bring in a whole lot of people in the remedy of criminalisation where they probably didn't need to be there.

The issue that's being debated a lot at the moment is it's more that, like where there's an age range as opposed to the actual age, isn't it? Like, I think most of us are kind of like, we're okay. I haven't heard anybody really fighting

that the age of 16 isn't okay. But what we're talking about then really, is 16 year olds having sex with other 16 year olds. When you're bringing in the issue of like a man in his 40s, 50s, 30s, whatever, should they be able to have sex with a 16 year old? That's the debate that's ongoing at the moment. Is that legislated against in any other country? Does any other country have that kind of law of like, right,

nobody over the age of 20 or anything like that? Yeah, some countries do. Canada has quite a complicated system. Some states in the US. And there is this element of staggeredness. There's actually even an element of staggeredness in UK law, as it is at the moment. Oh. So, it is X, as we could call it, is 16, but say that if someone is a resident in a care home or

institution of some kind, then the age of consent becomes 18 to any sexual relationships. I didn't know that. With someone who might have been associated with that institution. So there is that element of staggeredness already there and this idea that some kind of situations might make the person more vulnerable for exploitation. And I suppose that's what the conversation here is about as well. It's about capacity, it's about power and balance, it's about sort of that vulnerability of someone who's age of 16 versus someone who's age 30 and that kind of power

imbalance you might have in those relationships. But I think that's a really difficult thing to legislate. And it's difficult to think about there are all different kinds of power imbalances that can impact person's capacity to have sex. And I think this is a really important conversation to have, by the way, and I think we should be having this conversation. But I think we should also be having a conversation about capacity more broadly and thinking about different kinds of power relations, different kind of vulnerabilities that can make a person unable to consent. It's such an interesting and it has to be a very nuanced conversation that one, doesn't it? There are certain things that we can look at that pretty much unanimously we'd all go, well, no, that's not okay.

that to stay illegal. But then there are other areas where it starts to get a bit more complicated. One that we've been talking about recently, just me and my colleagues, is there isn't any law that says university lecturers can't have sex with their students because they're over the age of 18. And most universities, what they do is they say, please try not to. Like, it's not an actual rule. And that seems bonkers to me. But then the argument against that is that, yeah, but they're over the age of 18. They have active consent. And that's when that nuanced argument comes in, isn't there, about power imbalances? Yeah, and that's really important.

Because I think at the end of day, age is a really blunt tool. So you need to have this minimum age. Absolutely. I think you need to have minimum age. But then at the same time, you can have a 18-year-old who, for whatever different reasons, might be incredibly vulnerable for exploitation. Or you might have a 16-year-old who is quite mature and able to make decisions. So age is never going to capture everyone.

8 is always going to be kind of a two-planned a tool to really deal with it, or do you need that minimum threshold. But yeah, I agree. And I think particularly the university context has been complicated. And I think increasingly universities are making their own policies that are a bit stronger and that are clearer on what is and isn't allowed and what becomes a disciplinary matter. But then these things are complicated also in the sense of who is a student, who is a staff member. Like universities are quite, it's quite common for BST students. for example to be teaching. So if a BST student is teaching,

are they allowed to have a sexual relationship with another BST student who is not teaching? Oh, yeah. When it comes to universities, they're not as simple, we're not always talking about 50-year-old professors versus 18-year-old students, but there is that sort of people

who fall in between those categories as well. And I think that although we're not going to reach any conclusions right now on this podcast, but these are really important conversations to have. Even the fact that we're having them, like the idea about what point have you drunk too much to be able to consent? Like how does mental illness or physical disability impact on consent? These are such important conversations. And people like poor old 13 year old Eliza, the world that she lived in,

they would never have had conversations like of this depth, I don't think. No, I don't think so either. I think overall the idea of consent really emerged. It's something that is a bit more noir, some just a bit more. intellectual rather than physical, I think that only really emerges in the 20th century. Because still, if you think about 19th century, they actually used the word consent last. So in 19th century, traditionally in sexual offenses, they spoke about something being done against the will of a person and then later it changed without consent.

But when they meant consent, what they actually meant was physical resistance. So you see this word consent popping up, but it's nothing like the consent we understand today. So I think this idea of content is something that is actually really complicated and really nuanced, I think that's quite a new, in the long historical scheme of things, it's quite a new concept that really emerges in middle of 20th century, I would say. And I'm so glad that people like you are out there continuing the conversation and doing this research because it's so important that we have these conversations and that they keep going on. No, I agree.

And I think also the recent week show that these are conversations that are not going anywhere. No. But these are conversations that we need to be having, and we need to be having them in all different contexts, whether it's universities, where it's workplaces, whether it's homes. All of these places need to be having these conversations. Absolutely. Laura, you have just been magnificent to talk to today. Thank you so much for coming on the pod. And if anyone wants to know more about you and your research, where can they find you?

Well, they can find me at university work where you can find my profile. And I'm also on Twitter and it's my surname. So, Elam Muslim, but it's quite a long surname. So you might need to Google me first. Thank you so much. You have just been wonderful to talk to. Thank you very much, Kate. Thanks for having me on the show.

Thank you for listening. And thank you so much to Laura for joining me. And if you like what you heard, please don't forget to like review and follow along wherever it is that you get your podcasts. And if you want us to explore a subject, or perhaps you just had one too many sherberts and fancy dropping by to say hello. Well, you can email us. Our email addresses betwixt at history hit.com. We have got upcoming episodes on everything from Hitler's sex life to hellish Nell.

This podcast was edited by Chavon Dale and produced by Stuart Beckwith. The Senior Producer was Charlotte Long. Join me again Betwixt the Sheets, the history of sex scandal in society, a podcast by History Hit. This podcast contains music from Epidemic Sound.