Crimes against Children

Sexual Violence and Legal Culture in New York City, 1880-1960

Stephen Robertson

• Publisher: The University of North Carolina Press
• Year: 2006
• ISBN:
  9780807876480
• Topic: Droit
• Subtopic: Droit de la famille

In the first half of the twentieth century, Americans' intense concern with sex crimes against children led to a wave of public discussion, legislative action, and criminal prosecution. Stephen Robertson provides the first large-scale, long-term study of how American criminal courts dealt with the prosecution of sexual violence against children. Robertson describes how the nineteenth-century approach to childhood as a single phase of innocence began to shift at the end of the century to include several stages of childhood development, prompting reformers to create legal categories such as statutory rape and carnal abuse to protect children. However, while ordinary New Yorkers' involvement in the prosecution of those offenses reshaped their understandings of who was a child and produced a new concern to establish the age of their sexual partners, their beliefs in childhood innocence and in a concept of sexuality centered on sexual intercourse remained unchanged. As a result, families' use of the law and jurors' decisions ultimately diminished the protection the new laws offered to children. Robertson's study, based on the previously unexamined files of the New York County district attorney's office, reveals the importance of child sexuality and sex crimes in twentieth-century American culture.

Part One: The Age of Innocence

Chapter One: To Rescue the Developing Child

On 17 December 1874, the New York Times carried a report of a meeting held the previous day at the city’s Association Hall. “Invitations were extended to a large number of prominent citizens interested in the welfare of children,” the correspondent revealed, “and many [had] promptly responded.” They had come, Mr. Elbridge Gerry, the meeting’s chairman, announced, “to organize a society for the prevention of cruelty to children.”¹ Gerry, a member of a wealthy New York City family whose forebears included one of the signatories of the Declaration of Independence, was a graduate of Columbia College and a successful lawyer. Six years earlier, at age thirty-three, he had left his private practice to become counsel for the American Society for the Prevention of Cruelty to Animals (ASPCA). Those who responded to Gerry’s call, and assumed leadership of the new society, had similar backgrounds. They were “white, male, Protestant, and well-to-do.” Several had served on the board of the ASPCA; most were involved in other philanthropic activities. In the remaining decades of the nineteenth century, the organization they established, the New York Society for the Prevention of Cruelty to Children (NYSPCC), became an integral part of the city’s legal system, and the model for child protection agencies throughout the English-speaking world.²

One result of the work of the NYSPCC was a dramatic increase in the number of men who appeared in the legal system charged with committing sexual acts with children. The Society pursued law enforcement as the most effective means of protecting children. Such a focus on criminal prosecutions and convictions was not unique to New York City. Private child protection agencies in other states had powers similar to those possessed by the NYSPCC, and also used them to pursue criminal prosecutions. Unlike the NYSPCC, most of those agencies altered their philosophies in the early twentieth century, repudiating law enforcement in favor of strengthening families using the approach of social work. Notwithstanding that new concept of child protection, the actual activities of many agencies did not change substantially until the second half of the twentieth century. The Massachusetts Society for the Prevention of Cruelty to Children (MSPCC) and its director, Carl C. Carstens, for example, played a leading role in shifting the focus of the child protection movement toward an emphasis on professional guidance provided for the family. Yet in its work the MSPCC employed few professional personnel — as late as 1946 there was only one qualified social worker on the staff — and showed no marked decline in its reliance on criminal prosecution until the end of the 1920s.³

The NYSPCC’S law enforcement work was centered not on discovering crimes and apprehending offenders — although its agents did undertake both those tasks — but on ensuring that legal action was taken against those accused of crimes against children. While the Society’s agents discovered some crimes, working-class families and the police brought many more to their attention. The unique contribution of the NYSPCC was to take responsibility for all cases that involved child victims, provide advice to magistrates and prosecutors, and put complaints into a legal form. That role is best characterized as easing an offender’s path into and through the legal process. To perform it, the Society had to do more than respond to legal categories and structures. New York City’s legal culture was populated by a variety of different ethnic and racial groups, drawn from the working and middle classes, all of whom articulated different understandings of the law, of what was criminal, and of how particular criminal acts should be punished. Although efforts to professionalize the courts occurred at the turn of the century, legal expertise and experience were still in short supply among those charged with administering the legal system. Legal officials and jurors both claimed the discretion to decide the outcome of cases for themselves, often with little regard to the law. To win convictions, NYSPCC agents had to address themselves not simply to the law but also to the attitudes and beliefs of the ordinary working-class and middle-class New Yorkers who served on juries.

Since judges and jurors understood sexual violence in a way that made little allowance for child victims, the NYSPCC’S efforts were focused on winning recognition of the ways in which children were different from adults, and from adult women in particular. To this end, the Society progressively brought the state’s law into line with its understanding of childhood. In explaining child protection as an expression of a new humanitarian sensitivity to violence and pain, and of a new middle-class view of workers and immigrants as sharply different and threatening, historians have portrayed the movement as seeking to extend the middle-class vision of childhood across American society. But the NYSPCC’S vision of childhood was more than simply an echo of middle-class ideals.

In a departure from the practice of the previous generation of reformers, the Society relied on age to define childhood, settling on sixteen years as its upper limit. A new conception of childhood lay behind that approach, one that saw children not only as innocent in nature, but also as possessing a body different from that of an adult. Now childhood was tied more closely to bodily immaturity and, as physicians studied children’s bodies and attached age norms to growth stages, to age. When deployed in the law, age proved an unstable basis on which to define childhood, being, on occasion, at odds with what an individual said or with the appearance of his or her body. In addition, many New Yorkers still understood childhood as defined by a distinctive, innocent character, rather than by physiological immaturity. Relying on that concept, jurors made determinations as to who was a child based on what they heard an individual say, and not on evidence of age. NYSPCC officers responded to that competing understanding of childhood by presenting individuals under the age of sixteen years of age in such a way that their appearance and language were in line with what jurors expected of a child. In that way, the Society aimed to secure the convictions that it saw as offering protection to children.

The first step in recovering what went on in New York City’s courts is to understand the NYSPCC and the legal culture of which it formed a part. The Society was only one participant, albeit a relatively powerful one, in what took place in the legal process, but bringing the NYSPCC and its agents into focus will help in deciphering that complex interplay between reformers, legal officials, and working-class New Yorkers. It will also make it possible to see more clearly what it was that produced changes in the understanding and treatment of sexual violence.

When Elbridge Gerry appeared at the sixth annual meeting of the NYSPCC in 1880, to deliver only his second presidential address, he felt obliged to defend the Society’s attempt to enforce the law restricting children’s performances on stage. He, after all, had been instrumental in having that law enacted. On this issue, the NYSPCC’S traditional allies in the press had turned against them, and joined attacks on the Society as “fanatical, arbitrary and unjust.”⁴ Even among the membership of the NYSPCC were those who saw children’s appearance on stage not as labor but as something more akin to play, a source of enjoyment, income, and a “liberal education.”⁵ Others in the audience would have been concerned about the impact of the press attacks on the Society’s ability to secure the donations and state funding that it required to operate, and on its ability to justify the powers granted to it by the State Legislature.⁶

Gerry began his defense by dismissing as “specious” his critics’ claim that “exhibiting children for a few hours at night in a theatre did not amount to any legal cruelty, provided the child was allowed to sleep in the day and was properly fed.” He offered instead “a darker picture” of the child performer’s lot. The exhibition of children on stage warranted treatment as a form of abuse, he maintained, because of the “moral degradation” that it produced in them, the “result of subjecting children at this early age to every species of temptation.” Standing before his audience, Gerry was reticent about providing details of the child performer’s likely moral decline. He did claim, however, that “deprived of their opportunity for proper education,” and “with their little minds constantly running on the prospective applause of the audience,” and lacking “any fixed occupation when not actually employed in the theatrical business,” “their future [was] painfully suggestive.”⁷ In print, however, he was more expansive. Writing for the North American Review, Gerry described how child performers were “constantly brought into contact with persons about whose morality or virtue the less said the better.” For girls, those “bad associations” led them to “soon lose all modesty and become bold, forward and impudent.” By the time they reached sixteen years of age, which the Society defined as the end of childhood, female performers had usually become prostitutes, who went on to the “low dance-houses, concert saloons, and the early grave which is the inevitable conclusion of a life of debauchery.” Unfitted for “useful work” by their “idle life” in the theater, boys followed a parallel path that ended in their becoming “thieves or tramps.”⁸ This characterization of the child performer rested on an understanding of childhood as being distinct from adulthood, as being marked by a distinctive innocence. The concept of childhood innocence had emerged in the eighteenth century, and been adopted by evangelical Protestants in the revivals of the early nineteenth century, from whence it was incorporated into the domestic ideology of the emerging middle class.

Gerry also advanced another ground for treating child performers as abused children: they suffered physical injury as a result of their appearance on stage. Singing and dancing left the child’s “entire body over-heated and frequently over-exhausted,” Gerry warned, and children’s “little nervous systems [were] over-stimulated by the applause.” Even though it was “well known that a child requires more sleep than a grown person,” stage children got little rest as a result of the late hour at which the shows in which they appeared finished. Repeated performances eventually caused a child’s health to break down; the child grew “prematurely old, and finally end[ed] in a hospital and usually an early grave.”⁹ This concern with the body was a more recent addition to understandings of how children differed from adults. It was only after the Darwinian revolution of the mid-nineteenth century that the child and the adult were seen as having contrasting physiologies, the child’s being geared toward growth, the adult’s remaining fixed and static.

The child whom Gerry and the NYSPCC sought to protect was thus a contradictory mix, one part romantic, one part modern, a combination of a fixed, innocent character with a fluid, developing body. This manifold nature is an enduring feature of conceptions of the modern child, the product of a process in which “we do not so much discard old conceptions of the child as accrue additional meanings around what remains one of our most culturally potent signifiers.”¹⁰ For all its prominence as a focal point for reform efforts, the figure of the child was unstable, open to a variety of interpretations. As such, it was as likely to divide as to unite Americans, as Gerry knew only too well.

The view of childhood as distinctive, rather than as an immature form of adulthood, had emerged in the wake of challenges to the doctrine of original sin, which characterized children as innately depraved. This secularization of the concept of childhood brought a shift in focus from spiritual health to development and growth, a process seen as driven more by nature than by God. The work of the philosopher John Locke provides a common marker of the beginning of this redefinition of childhood; his book Some Thoughts Concerning Education went through twenty-six English editions before 1800, establishing it as the eighteenth century’s leading child-rearing guide. Locke is credited with giving authority to the idea that the child was a tabula rasa, possessing a blank nature at birth, capable of neither good nor evil until the child developed a will and the capacity to resist her or his impulses.

European romanticism went further in challenging the doctrine of original sin, arguing that a child’s original nature was innocence, a state of natural goodness. The opening sentence of Jean-Jacques Rousseau’s Emile asserted that “God makes all things good; man meddles with them and they become evil.” Rousseau urged that children be allowed to develop “naturally,” “according to certain laws whose natural progression must be respected above all,” without interference with the impulses, the “methods of seeing, thinking and feeling,” that set them apart from adults. Romantics thus insisted that childhood be treated as distinct from adulthood: “Nature would have them children before they are men.” It was not until the early nineteenth century that mainstream American Protestants joined in the repudiation of the concept of original sin. Evangelical revivals brought a rejection of predestination, in favor of a vision in which God made human beings free moral agents, in which evil did not come from an innate human depravity, but came rather from freely willed decisions to do wrong. The new theology gave the child the potential to be good, if parents instilled and nurtured virtue.¹¹

In the course of the nineteenth century, the notion of childhood innocence became bound up with a burgeoning middle-class domesticity. This ideology held that the child’s place was in the home, in the sphere, and care, of his or her mother, who was charged with shielding the child from influences that threatened its innoce...

Table of contents

• Cover Page
• Crimes against Children
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part One: The Age of Innocence
• Part Two: The Age of Consent
• Part Three: The Age of the Child
• Part Four: The Age of the Psychopath
• Conclusion
• Appendix: Tables 1 – 10
• Notes
• Bibliography
• Index