The admirably unshockable Mary Beard, Cambridge classics professor, must have raised a few eyebrows in her TV series earlier this year when she was talking about the scandalously early (by modern standards) age of marriage in Ancient Rome. As she also put it in the Guardian:

Some girls were 12 or 13 when they married. We call it paedophilia; they called it marriage. That’s one of the exciting things about Roman culture. It’s different from ours.

Only a woman these days, and one who is also an eminent historian, could express such a view without reputational damage. What male scholar, after all, could admit to excitement in this delicate context without inviting dark suspicion?

This week she was at it again, bless her, this time on BBC Radio 4’s A Point of View, talking about the accidental, historically contingent, nature of the age of consent: 16 in Britain, 18 in many US states, but only 13 in Spain. The age of consent in Britain, she pointed out, had been 12 in early Victorian times and was raised to 16 as a result of an “inaccurate and exaggerated” campaign against child prostitution by the crusading journalist W.T. Stead. Pondering what the age of consent ought actually to be if it were to balance young people’s right to a sexual life against the need to protect children, she said there had been a government inquiry into this in the 1970s. She even recalled that the Paedophile Information Exchange (PIE) submitted its own reform proposals to the government. Imagine that now, she said: an openly paedophile organisation being part of the democratic process! How times have changed!

At that time I was Secretary of PIE but I had no hand in devising our law reform proposals, which were the work of my predecessors. So without any personal bragging I am happy to add that the great reforming Home Secretary of the day, Roy Jenkins, let slip to our mole in the Civil Service that he thought PIE’s proposals were excellent. This was the man whose earlier work included presiding over the abolition of capital punishment, the reform of divorce and abortion law to advance women’s rights, and the decriminalisation of homosexual acts between adult males. As a realist, though, he added that in political terms PIE’s ideas “haven’t got a hope in hell”.

So perhaps times were not quite as different in the 1970s as Mary would have us believe. On the other hand, they were perhaps even more different in the centuries before the age of consent was raised to 16 than she suggests. I hesitate to argue with an historian of her stature, but I am not sure her statement that the age of consent had been 12 “since the 13th century” is correct. I wonder if she is getting a bit muddled with her own special period of historical expertise? Twelve was supposed to be the Roman minimum age of marriage for girls, and that doubled as an implicit age of consent although there were many marriages at much lower ages. Also Roman law formed the basis for a lot of mediaeval law in Europe.

Googling around, I found that, in her favour, the Wikipedia entry on the Criminal Law Amendment Act 1885, which raised the age of consent to 16, has this, about an earlier Act:

Under the Offences against the Person Act 1861, the age of consent was 12 (reflecting the common law), it was a felony to have unlawful carnal knowledge of a girl under the age of 10, and it was a misdemeanour to have unlawful carnal knowledge of a girl between the ages of 10 and 12.

But was the common law age really 12 before this Act? Might it have been 10?

This view is arguably supported by the 17th century professional opinion of the English jurist Sir Matthew Hale. At a time when mere “sexual touching” was no great issue, he confined his comments to rape. He wrote:  “Rape is the carnal knowledge of any woman above the age of ten years against her will, and of a woman child under the age of ten years with or against her will”. (History of the Pleas of the Crown. Hale wrote his famous treatise during the latter part of the seventeenth century, sometime before his death in 1676.)

Note that Hale talks about a “woman” over 10 years of age, but a “woman child” under 10. What he is saying here, it seems, is that there is only an offence above age 10 if there is no consent. In other words, consent is possible from 10 onwards. He also appears to be saying that a girl might be willing to have sex at less than 10 years old, but that it should count as rape anyway. This is an early version of what we now call statutory rape, isn’t it?

If we go back even further, to the 13th century, as mentioned by Mary Beard, we encounter an actual statute, not just a legal opinion. The first Statute of Westminster of 1275, included this passage:

And the King prohibiteth that none do ravish, nor take away for Force, any Maiden within Age (neither by her own Consent, nor without) nor any Wife or Maiden of full Age, nor any other Woman against her Will…

A “Maiden within Age” here appears to mean underage, as opposed to a “Wife or Maiden of full Age”. The underage maiden could not be “ravished”, even with her consent. Again, this looks “statutory rape”. Frustratingly, there is no reference to the actual age that counted in common law as being old enough to give consent. So all we have to go on is Hale’s later opinion.

Help! Legal historian needed!