The Intimacies of Empire

As the longer title of the well-known and much studied Criminal Law Amendment Act, “An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes,” makes clear, although the protection of young girls from sexual predators might have captured the public's imagination, the target of the law was the more nebulous “sexual danger” posed to normative values and the public order. One of the “other purposes” of the act was to make male–male sexual relations illegal. The history of the age of consent reveals how sexuality operates as a “dense transfer point of power” in society; beyond the rhetoric of social purity groups or, in other contexts, of colonial or national reformers, the history of the age of consent reveals how hierarchies of race, class or religion are organized.Footnote ¹ A focus on the age of consent testifies to the way in which women's bodies, in particular, “have been a subject of concern, scrutiny, anxiety, and surveillance in a variety of times and places.”Footnote ² It foregrounds gender as a category of analysis in the study of colonial contact and conflict.

The focus on sexuality, or the intimacies of empire, has been a hallmark of the scholarship that has brought metropole and colony into a “unitary field of analysis.”Footnote ³ Such a focus has revealed how the colonial context is essential to comprehending European sexual discourse and norms of bourgeois selfhood, just as the racial organization of colonial societies is illuminated in and as the regulation of sexuality. The history of the age of consent offers a powerful and unique view of the entwined histories of metropole and colony and of race and sex, and reminds us of the ways in which imperial power operated: not only emanating from the state and resisted by natives, but also as dispersed through and as (sexual) norms and as intimate self-regulation. It allows us to catch a glimpse of how colonized bodies—black and white, “Hindoo” and “Native,” male and female—came to be defined through the age-stratified regulation of sex.

The Rule of Colonial Difference and Differences of Context

In commenting on the swift spread of age of consent legislation in the settler and dependent colonies of Britain in the 1890s, Phillipa Levine asks: “What could consent actually mean in contexts of imperial rule … where imperial forms of rule expressly denied the modern forms of political consent that structured the broader debate in sovereign Britain[?]”Footnote ⁴ That the answer to the question is contextual and contingent on local circumstances is clarified by the historical work undertaken by the articles in this volume. The articles gathered here show how both the presence and promise of “consent” in theory, and its absence and its limitations in practice, appear in relief in colonial contexts. In other words, a comparative analysis of the age of consent (and child marriage) in the British Empire returns us to what Partha Chatterjee described as the “rule of colonial difference,” which posited an unbridgeable gap between colonizer and colonized, and which therefore distorted and destabilized attempts to establish universalist, rational, modern regimes of government in the colonies. The colonial state rationalized its existence as the agency to introduce universal ideals and institutions that would gradually civilize the native and thus eradicate their difference, while also condemning natives to exist in an eternal time lag and perpetual tutelage inasmuch as their continued (racial and civilizational) difference provided the raison d’être for empire.Footnote ⁵ The rule of law, which promoted the idea of a universal, secular, subject of rights, thus came undone in the colonies.

The age of consent itself varied in distinct locations: Scholars have noted how theories of climate, culture, and race were evoked to rationalize different, often, lower ages of consent in the tropical colonies.Footnote ⁶ The articles gathered here showcase how age of consent laws took colonial difference as the point of departure, and operated to further preserve this difference. As the articles in this collection clarify, age of consent legislation continues to provide a fertile ground not only for the study of gender relations and sexual norms, but also for comprehending structures of difference based on race (Sheik), religion (Sarkar), class (Lammasniemi) and age (Thornberry). In colonial Natal, where sex was differentially regulated along the lines of colonial law, Native custom, and Indian custom, the regulation of the age of consent became “part of the further definition and maintenance of legal segregation” that in turn ensured racial segregation, as Sheik argues. Here, difference was not a hidden or paradoxical mechanism that undid the universalizing promise of the rule of law; rather, the administration of ages of consent under three distinct systems of law became the ground for administering racial difference and preserving racial segregation. In colonial India, the lower age of consent did not necessarily reflect the hidden logic of racial “difference” or the expression of a racial ideology that undid universalizing imperatives, but came about as a concession to orthodox demands.

As the articles here show, although the history of the age of consent continues to offer insights on how difference was managed along different registers through the control of sexuality, differences in context might have been as crucial as the “rule of colonial difference.”

Beyond Colonialism and the Semantics of Consent

The articles collected here reveal that beyond the temporal coincidence of legislation across vast swaths of the British Empire, and the shared rhetoric of the “protection of women and children,” the imperatives for the passage of the laws as well as the resistance to them, was local, contingent, and reflective of the particularities of each historical context. In addition to asking what consent meant in contexts in which governance did not require the consent of the governed, the articles here enter a long-standing debate on the meanings of sexual consent as such, and in colonial contexts in particular.

Critiquing the gendered logic of consent, the political theorist Carole Pateman interrogates the fetishization of “consent” in liberal political theory, arguing that a sexual contract that organizes men's exploitative access to women's sexuality and labor precedes a social contract and upholds it, guaranteeing the subjection of women to men.Footnote ⁷ In her work on age of consent laws across the British Empire, Philippa Levine suggests that age of consent laws, couched in the language of protectionism aimed only at women, established political boundaries delimiting female rationality and marking men as natural citizens of the world.Footnote ⁸ Historians of age of consent in different parts of the empire have been instrumental in rooting these well-known critiques focused on the semantics of consent to its real-life effects.

Taking on the contention that “consent” had limited valence for the rights of women, Tanika Sarkar suggests here (as well as in her other exhaustive and path-breaking work on the age of consent and the Phulmoni case, to which she returns), that the evocation of consent allowed for a fledgling notion of rights in a Hindu marital order that did not even conceive of consent of females in the matter of marriage.Footnote ⁹ Here, she continues to criticize exaggerated notions of colonial power presented by postcolonial feminists, and suggests the history of the age of consent law points not to the colonial state's reach, but to its limited power in the face of “orthodox cultural nationalism [that] dominated public debates and unnerved the state.”Footnote ¹⁰ The two articles on India featured here show how the semantics of consent continues to be debated: Sharma revisits Dadaji Bhikaji v Rukhmabai (1885) to suggest that it captures “a shift from female consent being understood as a question of physical maturity alone, to a claim of “personal consent” or “intelligent consent” and the capacity to withhold such consent within an unconsummated marriage arranged in the girl's infancy. Sarkar writes, to the contrary, that in 1891 “consent contracted into mere physical capacity to sustain intercourse without grave damage. It was scrubbed bare of any associations with mental compatibility, will, or desire.” These discussions are evidence not only of differences in interpretation, but also of the “need to draw careful distinctions between the contemporary principle of informed consent and the ideas around consent most commonly articulated in the nineteenth century.”Footnote ¹¹ They raise the question of whether scholarly understandings of consent are reliant on the idiom of law.

Beyond tracing the local, contingent, and complex histories of the age of consent in the various locations of the British Empire, we must ask: if “consent” looks so different in these various places, what do we learn from putting them together in a unitary field of analysis? To what extent does our understanding of consent have its genealogy in “colonial Western law”?Footnote ¹² To what extent is the object of our scrutiny—“consent”—entwined with the history of the Empire? Herein might lie a further significance of studying the age of consent across the British Empire: to inquire into the ways in which modern legal, scholarly, and popular usage of the term might have provincial roots—in Western law—and how its universalization is bound up with the history of empire. In other words, instead of thinking of the history of (political and sexual) consent as an “absence” in the colonies, it might be useful to think further about how consent has been rendered ubiquitous to our understanding of gender justice through the mechanisms of colonial law in the nineteenth century, and international law in the twentieth.

Age of Consent on an International Frame and the History of Childhood

In 1928, the League of Nations’ Advisory Commission for the Protection and Welfare of Children and Young People published its report on the ages of marriage and consent around the world. The League assumed that the ages of consent and marriage could be regulated on a common ground, irrespective of local differences. To what extent did the history of regulation in the British Empire lay the groundwork for this international governance of sexuality? And did the imperial regulation of the age of consent generate the norms of universal childhood upon which subsequent laws on child protection were premised?

Historical work on the age of consent has long demonstrated how the age at which the law considers a young person capable of consenting to sexual intercourse is shaped by, and in turn, defines, the borders of childhood. In her analysis of Victorian Britain, Deborah Gorham shows how the age of consent must be understood in relation to shifting ideas about childhood, which were also reflected in laws regulating labour, compulsory education and delinquency.Footnote ¹³ In an analysis of statutory rape cases in New York City, Stephen Robertson traces the converse process, suggesting that the application of the laws on consent might have modified ideas regarding childhood and laid the groundwork for the sexualized understanding of adolescence.Footnote ¹⁴ In recent years, historians of childhood have turned to the age of consent in various colonial contexts. Scholars have shown how age of consent had a paradoxical effect of extending the period of childhood for women under the guise of protection, sometimes extending state control over female sexual choices.Footnote ¹⁵ Although applicable to females alone, age of consent legislation also indirectly shaped the contours of boyhood in colonial India; as the age of consent continued to be revised upwards beyond 12 in the 1920s, judges and juries presiding over cases involving boy rapists “of tender age” often made informal adjustments to the age of criminal responsibility to protect such boys from what they considered to be “unfair” or unduly hard punishment.Footnote ¹⁶

The co-constitution of notions of consent and the borders of childhood become all the more interesting in colonial contexts. Historians and critics have spilled much ink recalling the use of the childhood metaphor to rationalize and naturalize the suspension of liberal norms in the colonies.Footnote ¹⁷ Contributing fresh insights into this conversation, Thornberry scrutinizes the contours of African childhood in the Cape Colony Here, when the age of consent was explicitly extended to protect all children irrespective of race, “childhood” remained a pervasive, flexible, and ambiguous metaphor that structured racial difference, she writes. The extension of the age of consent to all races was not a concession to equality in rights, because there could be no admission that African children were innocents to be protected, whether from sex or labor. Colonial histories of childhood and the age of consent reveal, as Thornberry puts it, that childhood was imagined “as a period of hierarchical subservience, rather than a period of vulnerable innocence.”

What's Law Got to Do with It?
The Scrutiny of Cases, Rules of Evidence and Personal Law

The workshop that generated this group of articles sought to use the history of age of consent “to start a dialogue that recognizes not only the contemporary legal frameworks, but also analyses their historical interrelatedness and the impact that they had on one another.” The articles gathered here represent a start in this ambitious project. In concluding this commentary I will focus on the potential for a more engaged dialogue between legal studies and the history of the age of consent. What might such a dialogue illuminate about the potential and limits of our “contemporary legal frameworks” and their colonial genealogy? Which methods developed by historians of law and legal culture open up new directions for historians of consent? Conversely, debates on the age of consent have proved an immensely rich archive for exploring the histories of colonial rule, social and national reform, the woman question and the emergence of ideas of childhood. There is room to explore what a focus on the intimacies of empire might tell us about the history of colonial law.

First, recent excellent works on the history of colonial law indicate sources beyond the relatively well-mined ones that we tend to prefer, whether statutes, such as those examined in the articles by Sheik and Thornberry, or well-thumbed cases used to debate statutory provisions, such as those considered by Sarkar and Sharma), to neglected resources (the case law, or the notes and biographies of individual judges).Footnote ¹⁸ These thoughts are not offered in the spirit of criticism, but to chart out new directions that further research might take. For example, in her recent book on sexual crime in Mandate Palestine, Orna Alyagon Darr looks at 147 cases involving sexual crime (including non-consensual sex or rape) to scrupulously account for the ways in which differences of class, race, and ethnicity were just as important as the chronological age of consent defined by the law in securing convictions for under-age rape. She finds, for example, that under-age victims of crime were just as likely to be disbelieved, and were asked to account for their sexual histories. She demonstrates that the ethnicity, gender, religion, or class—not just of the victim and perpetrator, but also of judges and juries—determined which accusations they considered “plausible.”Footnote ¹⁹ Of course, the scrutiny of cases presents special challenges. Often, as Lammasniemi points out with regard to the Old Bailey, courts transcripts have not survived, and the problem is exacerbated in the colonies. Yet, Elizabeth Kolsky's two excellent articles on intra-racial rape in colonial India clarify the possibilities opened up by utilizing even the relatively brief published judgments of cases that appeared in the appellate courts.Footnote ²⁰ A survey of such cases involving “under age” victims—or those below the age of consent in India in the 1920s—shows that although the age of consent ostensibly extended the period of protection for Indian females, such adjustments rarely led to greater protection in practice. In these cases, the unavailability of evidence of age was often cited as the reason to let the accused walk.

Because the application of the age of consent law in courts often rested on contests over the age of victims, we must pay further attention to the laws of evidence, and forensic science, to understand what evidence was composed of (as Sarkar attempts here).Footnote ²¹ Even in the metropole, regulations based on age stipulations had limited salience, as the possession of precise knowledge about a person's age was rare well into the nineteenth century. Matters were made harder in the Indian subcontinent or Southern Africa, where records of age remained rare, and where forensic efforts to establish age—a dubious science everywhere—were a particularly fraught enterprise. A scrutiny of these other types of legal sources shows further that whereas age operated as a proxy for physical and mental capacity before the nineteenth century, it was only near this time—with the development of technologies to determine age with greater accuracy—that chronological age became important in itself.

Provincializing Consent

This paradox of age in the law regulating sexual consent is clarified by the case of another child-wife, who has left a much smaller mark on scholarship. In her brief consideration of the case from 1876 of Huchi, baptized as Helen Gertrude, the literary critic Gauri Visvanathan offers us the story of a 13-year-old seeking to exit her hastily arranged marriage after converting to Christianity. Refusing to accept the validity of her marriage, Huchi testified that she had never slept with her 18-year-old husband, whereas the husband claimed that the marriage had been consummated. The judge at the lower court deemed Huchi incapable of deciding for herself in terms of religion or marriage because she was below a certain age, even though she seemed to demonstrate “sufficient intelligence and discretion to judge for herself.” As Viswanathan argues, Huchi's case goes beyond the debates over pre-pubertal marriages or the age of consent that continue to “define the boundaries of the present scholarly discussions of gender and colonial law” by prising open “the relationship between maturity and chronological age”:

The judge put the “proxy” or convention of chronological age, before the evidence of personal capacity. Keeping such examples in mind, we can appreciate how historical accounts of the age of consent will be richer by pushing beyond a scrutiny of the meanings of consent in the colony, by querying the use of age as its measure.

These other sources—cases, laws of evidence, and finally, sources on “personal law”—show in relief the provincial (Western, juridical) origins of the age of consent.Footnote ²³ In doing so, they provide newer answers to the questions raised by the Call for Papers. The organizers called on the contributors to reflect on “how consent is/was understood within law, religion, and society; the distinctions made between physical and intellectual maturity in relation to capacity to consent; and how these were imagined for different sexes and different nationalities within the Empire.” How do different societies understand consent: by physical or intellectual criteria? How do they prove consent? To understand the different legal, religious and cultural framings of consent, we might also need to step outside the logic of the criminal law within which the “age of consent” resides.

In colonial contexts, the age of consent must be put in the context of other stipulations based on age and status in the law, such as the age of marriage which was often distinct from the age of consent and governed by discrete religiously-based system of personal law as administered through colonial courts. Here, the case of Muslim marriages, which were regulated by the criteria of sin-i-bulugh and sin-i-rushd (the attainment of puberty and discretion)—and not any “hard and fast rule of age”—might be particularly illuminating.Footnote ²⁴ The case of “Muslim law” in the British Empire is perhaps particularly significant, given the large swaths of the empire in which colonial courts administered translated versions of this law.Footnote ²⁵ I will end with one such case, which was contemporaneous to several discussed in this issue.

Badal Aurat's case presents a particularly striking contrast to the case of Phulmoni Dasi, raped to death by an adult husband on her wedding night, which was used to push through legislative change raising the age of consent from 10 to 12 years in 1891. Also in contrast to the case of Rukhmabai, who was returned to her husband against her will, Badal Aurat walked away from the man she was given in marriage to in her childhood. Married to Joy Lal at the age of 5, Badal was brought into the court on the charge of bigamy. Joy Lal had been in jail at the time that his young wife had come of age, and she had decided to marry again. Although a lower court did indeed punish her for contracting a bigamous marriage, Badal appealed the court's decision by claiming that she had left that marriage behind, using the “option of puberty” granted to her by her personal law.Footnote ²⁶ The case was heard at the Calcutta High Court by Justice Ameer Ali (1849–1928), a jurist armed with his extensive research on Islam and law, who had set himself the task of using the “opportunities for creative interpretation” provided by colonial courts in order to reinterpret the sharia “liberally,” and to showcase Islam's ability to modulate its tenets with the changing times.Footnote ²⁷ Was there sufficient evidence to establish Badal's bigamy? Ameer Ali considered that there was not. There was no evidence that a Mollah had presided over the so-called marriage ceremony, or that the sigha (formula) appropriate to the ceremony for minors had been read. Although this alone would have been enough to dispose of the particular case, Justice Ameer Ali wanted to clarify the legality of such marriages more generally.

The status of child marriages depended on various questions: what was the position of the person who had contracted the marriage for the minor, in the hierarchy of possible guardians? Was the match made for the child a suitable one on religious, social and ethical grounds? The answers could vary depending on the sectarian affiliation of the individuals in question. In this case, Badal's sectarian affiliation was not clear, but because Badal's husband had been in jail when she attained puberty, it had not been necessary for her to signify her assent or dissent. Finally, Ameer Ali considered whether the girl ought to have obtained a judicial order to annul the marriage when she came of age. Citing differences of opinion among various authorities, Ameer Ali decided in favor of Badal, suggesting that a judge's intervention was not necessary to confirm the girl's exercise of her “option of puberty.”Footnote ²⁸ This case is an interesting illustration of the many ways in which the law-courts comprehended “child” and “consent.” It shows how the law's culture—including the judge's biography and agenda—affects the interpretation of the letter of the law and its application. It shows how “proof” is a matter of culture: documentary proofs of age and evidence of consent were moot in this instance. Badal's rights and limitations were understood in relation to a matrix of social norms, affective ties, and the colonial state's administrative categories; her consent and ability were measured in relation to maternal and paternal authority, as well as her religious and sectarian affiliation. A scrutiny of cases does, in fact, show that these relational factors played into criminal trials as well.

There is scope, then, for explicitly comparative or transnational scholarship that continues to foreground and reassess the age of consent with a focus on the history of colonial law in its many manifestations, and using its multiple sources. Although the articles here demonstrate how the making of law, and its application, were shaped by local conditions as much as they were by the imperatives of imperial governance, explicit transcolonial comparisons will further clarify why the metropole and the colonies need to be located in a unitary analytical field. Thinking through the history of consent and marriage in the British Empire as a whole raises further questions: Can we comprehend “colonial law” beyond the metropole–colony dyad by foregrounding connections and flows of texts, norms and ideas among the colonies? A comparative perspective on age of consent laws reveals the wider legal legacies of colonialism, including the shaping of “Hindu Law” or “Islamic law” as “a central arena of struggle between local elites and colonialism,” to borrow from Iza Hussin and her excellent account of the emergence of “Islamic law” spanning Malaysia, Egypt, and India. Greater attention to these colonial histories of religiously-defined personal law might help us understand the British Empire as a dynamic stage upon which assymetric, multiple, provincial notions of consent were unsettled and translated. Instead of looking to colonial (and liberal) law as the source of somehing akin to rights in locations seemingly devoid of them, we could then revisit the sources of law with fresh eyes to recuperate histories of something akin to consent, called otherwise. Could such studies help further complicate the historical connections between the British Empire and the localized universe we now understand as the rule of law, and the consolidation of juridical humanity?Footnote ²⁹