Crime and Punishment in American History - Lawrence M. Friedman [211]
Fornication and “Statutory Rape”
In most states, adultery and fornication laws were still part of the penal code in 1900—either in pure form or of the “open and notorious” variety. Enforcement, to be sure, was patchy and sporadic. In 1910, the New York City police arrested twenty-three men and eleven women for adultery; six were convicted. This was out of a citywide total of 108,000 misdemeanor arrests.31 In Chicago, in 1926, ninety-five men and women were convicted of adultery; most of them were fined or put on probation, but four were sent to the county jail, and twenty to the house of correction.32
For one reason or another, there seems to have been a good deal of local variation in enforcement. Boston, for example, was apparently more serious about fornication and adultery than New York or Chicago. In the first six months of 1920, seventy-seven men and eighty-one women were arraigned in Municipal Court for “fornication”; twenty-five men and twenty women for “adultery”; and forty-six men and forty-nine women for “lewd and lascivious co-habitation.” A “white couple,” for example, was charged with this last particular offense: “their history showed that they had lived together for eight years” without bothering with wedding ring or license. Even in stem, bluenose Boston, the punishments for these offenses were light; cohabiters were encouraged to get married, and given probation. A “colored couple” convicted of adultery was sentenced to three months in jail but released on probation.33ck
Still, there was not much call for removing laws against fornication, adultery, and the like from the statute books. In some regards, the states strengthened their sex laws considerably, especially in the early part of the century. The most dramatic move was to raise the so-called age of consent. The age of consent was a crucial aspect of the law of rape. A man was not guilty of rape, of course, if the woman “consented.” But consent was meaningless, legally speaking, unless the woman was old enough to say yes.
A trend set in, in the late nineteenth century, to raise the threshhold age (it had been, originally, ten; see chapter 6). This trend continued well into the twentieth century. Indiana raised the age of consent from fourteen to sixteen in 1907.3435 In 1913, California raised the age from sixteen to eighteen.36 So did a flock of other states, including Arizona, Colorado, Florida, New York (1895), South Dakota, and Wyoming. Tennessee went the furthest: under Tennessee law, it was a felony to have sex with any woman under twenty-one. The age of the male made no difference in these statutes; if two sixteen-year-olds rolled in the hay, the boy was guilty of rape, and the girl was officially an innocent victim. It was legally the same regardless of whether she was, in fact, a victim or a willing and eager partner in crime.37 The laws, in short, made teenage sex a serious crime—for males. It was a crime to take a woman’s chastity, even if she gave it away.
Again, it is not easy to know exactly how often these laws were enforced. Certainly, there never was (nor could be) any systematic crackdown on young lust. But the statutes were hardly dead letters. There were enough angry or disgrunted whistle-blowers to see to that. In 1895, Andrew Di Santos, a black man of Alameda County, California, made love to fifteen-year-old Jennie Petranick, the girl next door. He went to Jennie’s mother, admitted he had “used” her daughter, and asked for permission to get married. The answer he got was prosecution for rape.38cl George Brown, a candy dealer of Cincinnati, was sentenced to fifteen years for statutory rape in 1891. He supposedly