Metaphors of Race and Childhood

Support for raising the age of consent outpaced the rest of the social purity agenda because it drew on a broader concern with child welfare. As the Cape Times observed in 1896, it was a “sign of the times…to assert the doctrine that children belong not alone to parents and families, but to the State as well.”Footnote ⁵ The 1894 Destitute Children's Relief Act exemplified this impulse, authorizing magistrates to transfer poor white children (under the age of 16) to government custody, place them in residential schools, and subsequently apprentice them through the age of majority.Footnote ⁶ Calling on the state to regulate sexual behavior in order to protect children fell squarely within this paradigm.Footnote ⁷

Yet the Criminal Law Amendment Act did not single out white girls for state protection. For several members of Parliament, this was a problem. A leading Afrikaner Bond member, Thomas Theron, stated bluntly that “so long as the case was one of a coloured man and a white girl it was very well, but when it referred to a white man and a coloured girl it assumed another aspect.”Footnote ⁸ On the other side of the debate, the bill's supporters also invoked race. Henry Juta, an ally of Rhodes who supported the act, was “sad to think that our little European girls should at the age of twelve be at the mercy of they did not know whom, and when they came to consider the question of the coloured races, who were much more developed, the need for raising the age was still more evident.”Footnote ⁹

It would have been nearly impossible to discuss childhood without discussing race. Recurrent comparisons between “savages” and children fused eighteenth-century Dutch understandings of slaves as “perpetual children” to nineteenth-century intellectual justifications for British imperialism.Footnote ¹⁰ As Richard Price has shown, the imagery of childhood was particularly important to British understandings of Xhosa-speaking Africans, who made up the plurality of the colony's black population.Footnote ¹¹ In the words of Methodist missionary W.C. Holden, Africans were “men in physical powers,” but remained “children in knowledge, ignorant of the relationships of civilized society.”Footnote ¹² Theories of evolution grounded the metaphor in science for those who cared about such things. T. Duncan Greenlees, the supervisor of the Grahamstown asylum and an ardent believer in eugenics, maintained that “the native brain has its analogue in the European child's cerebrum.”Footnote ¹³

This metaphor juxtaposed physical and intellectual maturity, the same disjuncture that worried age of consent campaigners. In addition to raising the age of consent, the Criminal Law Amendment Act also criminalized sex with “female idiots and imbeciles.” These parallel provisions constructed childhood itself as a period of deficient mental capacity. As one of the act's supporters argued, a girl might be physically “developed at fourteen,” but “her intellect was not matured at that age.”Footnote ¹⁴ Opponents saw a different problem: men might be convicted of a crime for having sex with a girl who was younger than 14, but looked older.Footnote ¹⁵ Yet even the Criminal Law Amendment Act's sponsor implicitly acknowledged that chronological age was an imperfect marker for the maturity that sexual consent required. James Rose Innes argued that “female children of thirteen years of age were on account of their bringing up and constitution quite incapable of realizing the consequences or meaning” of sex; but both “bringing up” and “constitution” varied from girl to girl, and, in the eyes of many Cape settlers, from black to white.Footnote ¹⁶

Race had its own ambiguities. Conceptions of indigenous Africans as fundamentally different from Europeans, even subhuman, had long circulated among both English and Dutch-speaking settlers.Footnote ¹⁷ Strict non-racialism had always been a minority position, whose influence derived more from international humanitarian networks than from broad local acceptance.Footnote ¹⁸ Yet racial hierarchies were more often assumed than explained; discussions of phrenology and Darwinism circulated through the Cape without coalescing into a coherent theory of racial difference.Footnote ¹⁹ Meanwhile, for most of the nineteenth century, the hierarchies that structured Cape life blurred class and race. Money “whitened,” within limits, and poverty made no racial distinction.Footnote ²⁰ Until 1892, black and white juvenile delinquents were housed together in the colony's sole reformatory.Footnote ²¹ Respectable white elites in Cape Town distinguished themselves from poor white Boers as well as from uncivilized Africans, sometimes using the language of childhood.Footnote ²²

By the 1890s, the white/black binary had emerged as the most salient dividing line in Cape politics. Even the stalwarts of Cape liberalism were moving away from non-racialism; as attorney general, Innes presided over the segregation of the colony's prisons.Footnote ²³ Yet racial distinctions remained under-defined. Some combinations of skin colors and physical features marked people as—in the language of the census—“European or White,” “Malay,” or “Hottentot.”Footnote ²⁴ Enumerating the colony's “five main races,” however, the census also separated “Fingo” from “Kafir and Bechuana”: a political distinction, rather than a phenotypical or even linguistic one. Meanwhile, as the residual category of “Mixed and Other” acknowledged, many Cape residents did not fall neatly into any these categories.

The ambiguities of age and race were not simply parallel. Rather, the difference between child and adult, and between black and white, posed the same question in two ways: how did life experience, biological inheritance, disease exposure, divine grace, and a myriad other factors combine to produce human difference? As a result, efforts to define childhood were inextricable from theories of racial difference. A few politicians attempted to locate physical maturity in the body. In the absence of a systematic racial science, however, their efforts only multiplied ambiguities. Henry Juta's claims that “the colored races…were much more developed” invoked the belief, widely held in the nineteenth–century Anglophone world, that puberty occurred “earlier with the inferior races, like the Africans, than with highly civilized nations.”Footnote ²⁵ Popular racial science, however, offered competing explanations for this purported fact. Whereas some experts traced precocious puberty to hereditary racial differences, others pointed to climate.Footnote ²⁶ Campaigners in Britain claimed that the age of consent had originally been set at 12 in hot climates, which caused girls to “develop at an earlier age than in this cold country.”Footnote ²⁷ This argument took on a different valence in settler colonies with warmer climates, including the Cape. Richard Solomon objected to raising the age of consent because “in this country girls arrived at womanhood at a very much earlier age than in England.”Footnote ²⁸ Thomas Trower responded that early puberty provided all the more reason to raise the age, as it increased the gap between mental and physical maturity.Footnote ²⁹

In the face of these ambiguities, the Criminal Law Amendment Act articulated a vision of childhood as a period of vulnerability defined by chronological age; supporters spoke of “protecting innocent girls” and “the weak.”Footnote ³⁰ As the act's opponents recognized, this understanding of childhood had unavoidable implications for race. If black Cape residents were children, then perhaps they too were innocents deserving of protection. More fundamentally, a commitment to universal childhood innocence undermined the social hierarchies that produced race itself in much of the rural Cape.

Race, Childhood, and Social Knowledge

Opponents of the Criminal Law Amendment Act objected specifically to its conception of undifferentiated girlhood. Debating whether the act should apply to boys below the age of 16, Cecil Rhodes reminded MPs that “they knew the kind of girl employed on those farms,” and asked “if a young fellow on an up-country homestead committed an error in a moment of great temptation were they going to send him for seven years to gaol?”Footnote ³¹ This would cause, he warned, “the greatest uproar ever heard.” Put bluntly, the bill threatened to disrupt white men's access to black female bodies, a legacy of slavery that otherwise went virtually unchallenged in nineteenth-century South Africa.Footnote ³²

In Britain, where industrialization spawned new forms of child labor, the moral urgency of the white slavery panic drew much of its power from the juxtaposition of idealized childhood innocence with the realities of working-class childhood.Footnote ³³ W.T. Stead's sensational exposé, “The Maiden Tribute of Modern Babylon,” described the sale of a young girl into sexual exploitation, dramatizing the resentments of working-class families whose children were denied the experience of childhood innocence in order to serve the desires of the wealthy, whether in brothels or in factories.Footnote ³⁴ In the Cape, the imagined setting was rural, but debates over the age of consent likewise linked the politics of sex to those of child labor. In the early nineteenth century, the apprenticeship of Khoe children had provided a key mechanism for securing the labor of entire families. In the wake of emancipation, indentured children provided an alternative source of unfree—and sometimes unpaid—labor in both urban and rural areas.Footnote ³⁵ On farms, white employers routinely demanded the labor of the children of their adult black servants.Footnote ³⁶ If “the kind of girls employed on these farms” were innocents deserving of the state's protection, should the state allow them to work? During the 1893 parliamentary session, several Cape politicians argued for compulsory schooling for white children.Footnote ³⁷ Applying these provisions to black children would constitute a radical transformation of the Cape economy. The temperance movement had already made the WCTU an enemy of the Cape's wine farmers, but the age of consent campaign placed them at odds with an even greater swathe of the rural elite.Footnote ³⁸

Yet not all of the “girls employed on these farms” were clearly marked as black. Rhodes's language blurred racial and economic hierarchies; the “kind of girl” was defined by her labor, rather than by her genetic inheritance, or even her phenotype. Indeed, before the Destitute Children's Relief Act, poor white children were apprenticed alongside their black counterparts, albeit in smaller numbers.Footnote ³⁹ Likewise, Attorney-General W.P. Schreiner raised the fact that many families had “no documentary evidence of [a girl's] age, especially with coloured people” as a reason to worry about false prosecutions.Footnote ⁴⁰ If black girls without baptismal records drew suspicion rather than protection, Schreiner also acknowledged that some white girls fell into this category.

To guard against blackmail from such girls, Schreiner proposed an amendment allowing magistrates to throw out a charge if a girl looked at least 14 years old, regardless of her actual age.Footnote ⁴¹ The bill's supporters saw Schreiner's proposal as an invitation to corruption. John X. Merriman “could not imagine a greater scandal than a man of wealth…discharged by the exercise of the magistrate's discretion,” while W.H. Hockly argued bluntly that “the measure made a distinction between the rich and the poor.”Footnote ⁴² All three men assumed that working-class girls, whose race remained ambiguous, would lay accusations against wealthy and respectable men.

As Sarah Duff has observed, the Destitute Children's Relief Act separated poor white children not only from poor black children but also from middle-class white children, who were not expected to work.Footnote ⁴³ The 1893 school regulations likewise articulated a finely graded hierarchy of day schools, trade schools, evening schools, and white mission schools.Footnote ⁴⁴ These impulses were harder to reconcile on the subject of the age of consent. The Criminal Law Amendment Act split the Afrikaner Bond between those who prioritized rural hierarchies and those who prioritized the rescue of poor white girls, following the cleavage between Jan Homeyer's effort to build coalition of English and Afrikaans-speaking rural elites and S.J. du Toit's vision of a cross-class Afrikaner coalition.Footnote ⁴⁵

In a debate over rural education, Hofmeyr argued that “the son of the rich farmer, who wished him to become a parson, a doctor, or to enter the Civil Service” should attend a different school and study different subjects than “the son of poor whites.”Footnote ⁴⁶ Whiteness was not reducible to class in this view; as Herman Giliomee argues, it was a desire to “assert Afrikaner, and broader white, supremacy unambiguously” that united the different factions of the bond.Footnote ⁴⁷ Rather, the slippage between race and class in debates over the age of consent illuminates the racial common sense of the rural landholding class. South African racial thought has long been characterized by a remarkably frank recognition of the social construction of race, even as racial categories structured every aspect of the state.Footnote ⁴⁸ In the nineteenth-century Cape, statutes employed terms such as “native” and “European” without any definition. In a rare nineteenth-century attempt to define whiteness in law, however, the Destitute Children's Relief Act applied to “any child of European parentage.”Footnote ⁴⁹ Such a child had the same relationship to whiteness that Hofmeyr's “son of the rich farmer” had to wealth.

If ancestry called forth ideas about biological inheritance, it was a fundamentally social form of knowledge, even more so in the absence of compulsory birth registration. Meanwhile, it was commonly accepted in the Cape that many white residents of the colony had nonwhite ancestors, while a black resident of mixed descent might “have more European blood in his veins than negro.”Footnote ⁵⁰ Social knowledge of ancestry was selective, and known to be so. This fact did not, however, undermine rural racial hierarchies; if anything, it reinforced them. In 1896, Superintendent of Education Thomas Muir explained that racial ambiguity would not prevent the enforcement of segregation in rural schools because, “I find in the country that suppose you have two children of the very same color, the public make a distinction.”Footnote ⁵¹ In farming districts, dense social ties allowed respectable landholding elite to make such distinctions. Social knowledge could resolve racial ambiguity, while maintaining hierarchies within the white population.

In this context, opponents of the Criminal Law Amendment Act sought to defend wealthy white men from poor girls who were largely, but not exclusively, categorized as black. This was a theory of race, but also of childhood. Like race, age could not necessarily be straightforwardly read from appearance. W.P. Schriener's amendment would have given local elites the authority to “make the distinction,” substituting their own judgment for parental claims or even documentary evidence. Although Schreiner's proposal failed, a successful amendment exempted men from prosecution if they had sex with a 12- or 13-year-old prostitute (although brothel-keepers could be prosecuted in such cases). Notably, standard interpretations of Cape law did not recognize prostitution as a defense to the charge of rape by the 1890s, even if convictions in such cases were vanishingly rare.Footnote ⁵² And although most prostitutes in the 1890s Cape were black, a significant and growing minority were white, at least for the purposes of the 1891 Census.Footnote ⁵³ Childhood innocence flowed not from chronological age, or even from race alone, but from an interlocking set of hierarchies, passed from one generation to the next. By the same token, if black adults were childlike, the status earned them no special protection.

European Civilization and White Degeneracy

Social purity activists objected strongly to this hierarchical attenuation of childhood innocence. As Cape WCTU President Teresa Campbell charged in a discussion of the Contagious Diseases Act, legislators who voted to exclude prostitutes from state protection were “saying ‘As long as it is your daughter it is a good thing, when it comes to my daughter it will not seem quite the same thing in fact it will be all wrong.’”Footnote ⁵⁴ By contrast, the Criminal Law Amendment Act proposed a universal category of innocent girlhood, unmarked by race or class, or, in its original form, even sexual respectability. This non-racial language articulated, however, its own theory of race as a form of human difference, and identified childhood as the crucial site of its production.

The Cape social purity movement drew support from women with a range of views on the “native question,” but it was dominated by middle-class white English-speakers, with links to the missionaries who carried the torch of non-racial liberalism in the late nineteenth-century Cape.Footnote ⁵⁵ The organization's efforts to “rescue” prostitutes targeted white and black women alike. The status of black women within the WCTU itself was more controversial; in 1892, several delegates to the Cape WCTU Convention objected to the creation of “Native Unions” that would “stand on an equality with our Unions,” whereas others believed they “could not shut out native women if they were willing to sign our Constitution and work along our lines.”Footnote ⁵⁶ In the end, however, Teresa Campbell insisted that they had “no right to exclude any one on account of color, whether that be black, brown or green.” By the mid-1890s, shortly after the passage of the Criminal Law Amendment Act, a group of African women in East London's East Bank Location—including Deena Rubusana, the wife of W.B. Rubusana—were running meetings under the loose auspices of the local (white) WCTU branch and signing petitions to raise the age of consent to 19.Footnote ⁵⁷ Meanwhile, a group of Native Women's Christian Associations affiliated to the WCTU had several hundred members in the Transkei.Footnote ⁵⁸

These women had their own reasons for supporting age of consent legislation. Black public opinion was already outraged by the seeming impunity of white men who raped black girls.Footnote ⁵⁹ In a widely reported 1891 case, an all-white Cape jury acquitted a white man of assaulting a 12-year-old black girl. Imvo Zabantsundu, the newspaper founded by John Tengo Jabavu with financial help from Richard Rose Innes, James's brother, reported on this “disgraceful incident.”Footnote ⁶⁰ African voters were an essential component of the liberal electoral coalition, and they expected Innes and other “friends of the natives” to do their part in protecting black girls from predatory white men.Footnote ⁶¹ Excluding black girls from the Criminal Law Amendment Act would have alienated a significant part of Innes's electoral base, as well as violating his own moral convictions. Innes was the only parliamentarian to explicitly refer to the act's protection of black girls, describing how the children of “Malays and Asiatics…were brought up for purposes which he did not think it was to the interest of the State or good government to allow.”Footnote ⁶²

This was a classic imperial liberal position, simultaneously asserting the superiority of “civilized countries, which fixed an age limit” on youth sexuality and promising to extend the protections of civilization to colonized populations.Footnote ⁶³ Over the course of the nineteenth century, liberal comparisons of Africans to children had cast British rule as a form of prolonged education. This use of the metaphor could justify disenfranchisement and coercion, because “it is not usually left to children to have school organized just to their liking,” but it held open the possibility of black citizenship; W.C. Holden described Africans as children, but asserted that “the black races are fully capable…of rising to the highest state.”Footnote ⁶⁴ Prominent black politicians embraced this framework to ground their claims for legal and political rights, arguing that “our people have shown that…given the opportunity, they can assimilate in a generation much of the European civilization.”Footnote ⁶⁵

Such invocations raised questions about the relationship between “European” and “civilization.” In the 1890s Cape, “European” was a racial category more than a geographic or cultural one. Civilization, too, was often used as a euphemism for race. When Jan Hofmeyr invoked the “barbarian vote” as a reason to change the franchise qualifications, the Diamond Fields Advertiser charged that to “the average Dutch Africander,” any “mental attainments and ownership of property are blotted out by a black skin.”Footnote ⁶⁶ Meanwhile, most liberals did not reduce race to civilization, any more than rural elites reduced race to class; the “civilised native” was still a native.Footnote ⁶⁷ But were all Europeans civilized? And if black people could be educated into civilization, was it equally possible for white people to be mis-educated into savages? These questions circled back to childhood, the period of life when nature and nurture combined in some inscrutable formula to produce the adult self. An 1896 article in the Port Elizabeth Telegraph raised the plight of “European children who have been deserted by their parents and are growing up as white Kafirs.”Footnote ⁶⁸ Children might inherit their parents’ phenotype, but civilization had to be inculcated anew in each generation.

By enforcing sexual purity, a cornerstone of civilized morality, the Criminal Law Amendment promised to protect both innocent children and European civilization. James Rose Innes invoked the number of “children growing up with a mixed population under circumstances which rendered it impossible for a parent to keep an eye constantly on them,” as a reason that “this of all countries was the country in which” the age of consent should be raised.Footnote ⁶⁹ His concern was for the well-being of individual white girls; but others saw a more existential threat. Douglass Hay explained the need for the bill by pointing to “great moral evils” evidenced by Cape Town's “snuff-coloured community.”Footnote ⁷⁰ For Hay, this “moral evil” was also a harbinger of civilizational decline. He “did not think Europeans were so good as they used to be,” because of “contact with another so-called inferior race.”Footnote ⁷¹ The only way to rectify this problem would be to start anew, removing children “from the evil influence and contamination of their own families.” In this view, proper whiteness could only be protected by rupturing the bonds of ancestry.

Civilizational decline was both a moral concern and a political threat. The 1892 Franchise and Ballot had instituted a literacy test precisely to limit the black vote, but by the 1890s, such measures only put off the moment of reckoning. In parliamentary debates over compulsory white education, John X. Merriman warned that “a certain section of the white population were sinking” while “at the same time the coloured races were rising,” because they “showed the greatest ability to get education.” The potential consequences were dire; “if the coloured people got to despise the white people,” he asked, “what was the future of the country going to be?”Footnote ⁷² Merriman was a liberal, who insisted that the Criminal Law Amendment Act should conform to the principal of “an equal law, guarded as far as possible from all influence on the part of those who administered it.”Footnote ⁷³ By protecting white children from racial degeneracy, he sought to secure European civilization in the Cape, and thus the conditions under which black people might eventually remake themselves as liberal subjects.

Although a belief in the black capacity for civilization raised the specter of white degeneracy, the converse was not necessarily true. If civilization required both proper upbringing and innate capacity, many white settlers agreed with the Cape Argus that black Cape residents were “childlike…even when semi-civilized and christianized.”Footnote ⁷⁴ Meanwhile, anxieties about civilizational decay slipped into other theories of racial degeneration. The Port Elizabeth Telegraph worried about “white Kafirs” in part because they would produce mixed-race children, “increase[ing] the race of bastards.”Footnote ⁷⁵ Contagious diseases such as leprosy could also serve as vectors of racial contamination.Footnote ⁷⁶ Indeed, the age of consent campaign contained its own theory of bodily pollution. George Palmer's lament for the “wasted and blasted lives of young girls” and J.W. Sauer's warning that “unfortunate girls were ruined for life” suggested that sexual violation produced an irreparable degradation.Footnote ⁷⁷

These various articulations of contamination shared, however, a belief that “European civilization” could not be taken for granted. Neither biological inheritance nor social knowledge could guarantee that phenotypically white babies grew into proper European adults. This theory of race returned again to childhood, when the self remained inchoate. Degenerate white adults might be too far gone for rescue, but church and state “could take their children in hand and make them better men than their parents.”Footnote ⁷⁸ The Criminal Law Amendment Act's claim of universal childhood innocence, defined by chronological age, thus served to protect European civilization against degradation. Some its supporters emphasized civilization, potentially available to people of any descent or phenotype. Others emphasized Europeanness, but sought to strip away the nuances of social knowledge. Childhood epitomized this equality; all (white) girls were equally innocent, before the world had a chance to contaminate them.

African Girlhood

Most girls in the Cape, however, were black. The language of the Criminal Law Amendment Act made no racial distinction; but roughly 800 km east of Cape Town, the Fish River marked the dividing line between the “Cape proper” and the “Native Territories,” which were administered separately.Footnote ⁷⁹ Unlike the Cape proper, where white settlers made up more than a third of the population and owned the vast majority of the land, the Native Territories were populated almost entirely by black Africans who spoke indigenous languages. Like most acts of Parliament, the Criminal Law Amendment Act did not initially apply to the Native Territories, home to more than half of the colony's black population.Footnote ⁸⁰ Given Cecil Rhodes's opposition, it is perhaps unsurprising that his administration declined to extend the act to the Native Territories, where black Africans made up the vast majority of the population. What seems to require explanation, rather, is the absence of significant parliamentary or public mobilization on this issue from even the most liberal supporters of the 1893 act. Neither white or black politicians picked up the cause, whereas WCTU activists segued almost immediately into a campaign to raise the age of consent even further, with little attention to the exclusion of the Native Territories.

Despite the centrality of race to debates over the age of consent, the Cape campaign largely avoided one of the pervasive tropes of the international social purity movement, which described the sexual exploitation of black girls in Asia, the Middle East, and other parts of Africa as a problem of civilizational and racial difference.Footnote ⁸¹ British and American campaigners described child marriage in India, site of the most sustained international attention, as a problem of colonial subjects, “simultaneously…cause, effect, and symbol of Indian promiscuity.”Footnote ⁸² White women called on their own legislators to affirm Anglo-American civilizational superiority and reject this “eastern custom,” by raising the age of consent at home.Footnote ⁸³ Simultaneously, campaigns against child marriage allowed British feminists to claim their own political rights by positioning themselves as protectors of their black and brown sisters, without undermining the logic of racial difference.Footnote ⁸⁴

Cape activists likewise sought to reform African family life. The WCTU organized native women's associations in both the Cape proper and the Transkei, and made “purity…a special part of the work among native members.”Footnote ⁸⁵ In South Africa, however, the prototypical pathologies were not early sex and marriage, but rather polygamy and bridewealth, or, as one Xhosa woman described it to Kate Bushnell, “the wicked custom of selling their daughters, sometimes into polygamous relations, for cattle.”Footnote ⁸⁶ Both black and white social purity activists urged Xhosa-speaking women to “make an open stand against the customs of your own people.”Footnote ⁸⁷ In the case of youth sexuality, however, African custom seemed to recognize a higher moral standard than colonial law.

Xhosa-speaking communities in the Eastern Cape had long understood age—or, more specifically, life stage—as an important factor in the regulation of female sexuality. Only after first menstruation (ideally celebrated by an intonjane ceremony) would girls become young women, ready to marry or to have penetrative sex. In court cases from the late nineteenth century, Xhosa-speakers described sex with girls below this milestone as a distinct form of sexual harm.Footnote ⁸⁸ A 1961 study in the Transkei placed the average age of first menstruation at over 15 years.Footnote ⁸⁹ It may well have been higher in the late nineteenth century, because of staggering levels of malnutrition.Footnote ⁹⁰ At the age of 14, then, many girls were adults in the eyes of colonial law, but not according to custom. Even after menstruation, prevailing interpretations of custom punished men who had extramarital sex, with stronger sanctions for those who deflowered virgins.

The view of childhood that underpinned these customary sanctions was not the vulnerable innocence of social purity campaigners. Premenstrual girls might not be ready for intercourse, but they participated in non-penetrative forms of sexual play known as ukumetsha, which were condoned—and occasionally mandated—by precolonial norms.Footnote ⁹¹ Humanitarian reformers had long held up this contamination of childhood as a marker of indigenous barbarism. As one Congregationalist missionary lamented in 1841, the practice of ukumetsha was essential to the recreation of savagery in new generations of African children, by “instruct[ing] them to vices before their minds could possibly have obtained a natural disgust for them.”Footnote ⁹² The liberal project of creating civilized Africans required rescuing girls from such sexual corruption.

Yet ukumetsha was not a crime under the Criminal Law Amendment Act or any other colonial law, as long as it stopped short of penetrative intercourse and took place out of public view. In other respects, meanwhile, prevailing interpretations of custom restricted sexual immorality much more than did colonial law. By the late nineteenth century, Cape courts almost never prosecuted consensual seduction or adultery as crimes, and the requirements for civil action were strict.Footnote ⁹³ By contrast, most interpretations of custom authorized fathers to sue men for seducing their daughters regardless of their previous sexual experience, and authorized husbands to sue for adultery without divorcing their wives. Almost all extramarital intercourse was subject to legal penalties.Footnote ⁹⁴ Meanwhile, in some articulations, custom dovetailed strikingly with the social purity movement's theory of sexual exploitation. In the words of the Xhosa law agent Andrew Gontshi, “according to [Xhosa] law the woman through being the weaker creature even if the consenting party as in the case of seduction is not to blame. The man is always held responsible, as he is the stronger creature.”Footnote ⁹⁵ In the eyes of the Cape WCTU, too, “those of our sisterhood who have lost the priceless jewel of virtue” were “more sinned against than sinning.”Footnote ⁹⁶

Therefore, a decade before introducing the Criminal Law Amendment Act, James Rose Innes's father, himself a committed liberal, had called a questionnaire that asked “what constitutes the age of consent on the part of a girl in cases of rape” in the Native Territories “uncalled for and mischievous,” because it was a crime “of which people know nothing at present, and the effect” of defining an age of consent “will be to educate them…improperly.”Footnote ⁹⁷ From a man otherwise committed to legal uniformity and to spreading European civilization through education, this was a striking statement.Footnote ⁹⁸ In the Native Territories, the age of consent campaign collided with the younger Innes's twin commitments to the superiority of European civilization and the capacity of Africans to attain that civilization, laying the foundation for the rise of liberal segregationism.

Metaphors of Childhood in the Segregation Era

The Criminal Law Amendment Act was finally extended to the Native Territories in 1905, under the government of Rhodes's protégé Leander Starr Jameson. The impetus came not from social purity campaigners, but from Transkeian magistrates seeking to bolster the authority of African patriarchs. The issue came to the Law Department's notice in a discussion of the crime of abduction. The acting chief magistrate for the Native Territories wrote to recommend bringing the Native Territories Penal Code into alignment with the Cape proper, by raising the age for prosecutions “for cases of abduction ‘for the purposes of marriage from motives of lust’” from 14 years to 21 years, the legal age of majority.Footnote ⁹⁹ In Cape law, abduction was defined by the lack of consent of a woman's legal guardian.Footnote ¹⁰⁰ The charge was frequently used to prosecute cases of ukuthwala, a form of irregular marriage that included both consensual elopements and forced marriages.Footnote ¹⁰¹ The latter could be prosecuted as kidnapping and, where relevant, rape; but, as the acting chief magistrate noted, kidnapping charges were unsuited to cases in which “the age and sex of the subject are of the essence”; that is, in which the problem was the challenge to gendered and generational power. Raising the age limit for abduction prosecutions would shore up the authority of fathers and other male guardians over women between the ages of 14 and 21.

As an aside in this memorandum, the acting chief magistrate added that judicial officials “have also felt the want of Act 25 of 1893 to these Territories and I consider that it would be well if its provisions were so extended.” As with raising the age for abduction prosecutions, raising the age of consent to sex would reinforce the power of male guardians over female sexuality, by enabling the criminal prosecution of men who had sex with 12- and 13-year-old girls without having to prove lack of consent. Other men proposed raising the age even higher. Speaking to the 1912 Commission on Assaults on Women. John Tengo Jabavu advocated raising the age of consent to 21, the age of majority. Jabavu's view was in line with the position of the national social purity movement, but his testimony also linked the age of consent to the erosion of familial authority. Speaking of ukuthwala marriages, Jabavu testified that “under the old laws there would be a remedy for a state of things like that…heavy fines.”Footnote ¹⁰²

These arguments built a new coalition for a non-racial age of consent. By the early twentieth century, social purity activists and other liberals increasingly aligned themselves with the discourse of de-tribalization. The postwar WCTU advocated for sex education, calling on members to “fill their [children's] minds with holy, pure thoughts about themselves and nature's functions.”Footnote ¹⁰³ Mary Brown, who led the Cape WCTU Social Purity Department after the South African War, likewise believed that, with the right education, black women and men could ascend “the scale of civilization.”Footnote ¹⁰⁴ Yet not all education helped the cause of civilization. In a 1906 speech, WCTU President Ethel Mackenzie acknowledged that it might seem that “Christianity and education spoil” Africans, but argued that “we come to this conclusion because our knowledge of natives is what we know of them in town.”Footnote ¹⁰⁵ By contrast, in the rural areas of the Native territories, “they are more or less protected, 1st, by their own laws and customs, and 2nd, by the missionary whom they learn to love and respect.”

Mackenzie's argument reconfigured the relationship among education, custom, and settler society. Christian education and custom worked hand in hand to prevent immorality, although the former presumably remained superior to the latter; it was urbanization, with its exposure to the uncivilized underbelly of white society, which contaminated. In making these arguments, as Pamela Scully has shown, twentieth-century white feminists updated the metaphor of black childhood to claim their own political rights.Footnote ¹⁰⁶ Mary Brown campaigned for women's suffrage on the grounds that “the real and best interests of those coloured people who are so many of them mere children, will be safer, if women share the privilege of the vote.”Footnote ¹⁰⁷ Black children, both literal and metaphorical, might have the capacity to grow into civilized adults; but they required protection in the meantime, lest they receive the wrong sort of education. White feminists claimed that allowing women to vote would ensure that white society acted to civilize, rather than degrade, black South Africans, by, among other measures, raising the age of consent to 16, 18, or even higher.

Yet the twentieth-century age of consent campaign also drew support from opponents of white women's suffrage. Joseph Anderson, District Surgeon for East London, told the 1912 Commission, “I do not see why [the age of consent] should not be indefinite. I do not see why a man should not be held responsible for having intercourse with a woman who owes an allegiance to anyone else.”Footnote ¹⁰⁸ Anderson was talking about white women, and grounded his position in patriarchal authority: “I do not believe in the equality of the sexes doctrine. The male is the head of the female.” His testimony cast women, rather than Africans, as perpetual children. Like racial comparisons, however, it turned on distinctive ideas about the nature of childhood. As earlier opponents of the Criminal Law Amendment Act had done, Anderson imagined childhood as a form of hierarchical subservience. The continued ambiguity of childhood allowed him to make common cause with white feminists who imagined it as a period of vulnerable innocence.