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Cultures of Sex, Laws of Difference: Age of Consent Law and the Forging of a Fraternal Contract on the Margins of the Nineteenth-Century British Empire

Published online by Cambridge University Press:  02 April 2020

Nafisa Essop Sheik
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Abstract

In the British colony of Natal, laws governing sex for settlers were concerned with reproduction and sexual respectability, which were the grounds for imagining difference amongst imperial populations only recently assembled under colonial jurisdiction. Age of consent laws arose out of these contingencies rather than out of any concern with a liberal politics of social reform. Consequently, colonial age of consent laws governing white settlers bore only superficial resemblance to metropolitan legislative reforms such as age of consent laws. Instead, the Natal state's practices of law-making recognized three discrete and divergent moral economies of sex in the colonial laws governing white settler citizens, Native law which governed the lives of Africans and the consolidated body of laws governing Indian immigrants. In this young colony, not only did ‘age of consent’ laws have to be newly made, but they were conceived separately and contained by ‘colonial law’, ‘Native custom’ and ‘Indian custom’. The sexuality of young white woman was coded in colonial rape laws and used to draw lines of civilizational difference between settler citizens and their Others. For these others, relating sex to exceptional marriage customs excluded from legal codes of civilized common practice was how the state worked to assert difference.

Type
Forum: Regulating Age of Consent in the British Empire
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 201 - 218
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

She is grateful for the spontaneous and generous childcare labours of Shireen Hassim and Clare Loveday one beautiful day in the Cape; for the support of the brilliant women of the Women's Writing Group; for Stephen Sparks' daily reproductive toil; and for Keith Breckenridge's encouragement of the ferocity of this woman's scholarly purpose. All of them feminist solidarities and friendships without which this paper would not have seen the light of day.

References

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31. The act was less about freeing women from “degradation” than it was about shifting the generational power of men by allowing younger men access to women on the same basis as older men of greater customary status. For a fuller discussion of the 1869 law and the illiberal impulses behind what was seemingly an instance of reform, see Nafisa Essop Sheik, “African Marriage Regulation and the Remaking of Gendered Authority in Colonial Natal, 1843-1875.” It was also not necessarily the case that young African women had begun to take the kind of liberties in relation to the supposed legal liberalization that their fathers and guardians claimed. Some women did indeed use the law to leave their parental homes and “come to town,” as Shepstone testified before the Native Affairs Commission in 1882 (NAB NCP 2/2/2), and as scholars such as Norman Etherington, David Welsh, Ben Carton, and others have noted. But the protests of older African men in fact reflected the real and imagined consequences of the rupture in the authority of older African men. The abanumzana (married men) and chiefs who testified to the ruptures induced by the law were testifying to the manner in which the law appeared to be undermining a specifically generational form of male power. Younger men's testimony welcomed the 1869 restrictions as a way of checking the authoritarian power of chiefs and senior men and making it possible for young men to marry more readily.

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