Measuring Criminality by the Bodies and Minds of Female Victims

Spanish laws dating from the thirteenth century, which were used in Argentine courts into the 1890s, established a legal foundation for the invisibility of boys. The Siete Partidas punished men for sexual transgressions based on two factors: the way an act was perpetrated and the moral character of the female victim.Footnote ¹³ Both the lack of female consent and vaginal penetration made certain sexual behaviors illicit. A man could force a woman's consent through either physical violence or seduction, which generally took the form of a promise of marriage.Footnote ¹⁴ Whether procured through violence or seduction, the Siete Partidas only punished copulation. It provided no provisions for categories of “sexual abuse.”Footnote ¹⁵

In addition to the means by which an illicit sexual act was perpetrated, the virginity or chastity of the female victim dictated its criminality.Footnote ¹⁶ The concept of seduction implicitly assumed that a woman was chaste or “honest,” and therefore susceptible to male persuasion. The man who used deception or praise to entice a nun, a widow who lived cloistered in her home, or a virgin into bed sinned because he corrupted her chastity, and was potentially liable.

These laws reflected broader social and cultural mores that held men and women to distinct standards of sexual behavior. In Spanish patriarchal society, concern over parentage and inheritance resulted in concerted efforts to control female sexuality. Women were to remain cloistered in the home, to maintain their sexual purity until marriage, and to transition from the protection of the father to that of the husband. Simultaneously, men had free sexual license to be the dominant, penetrating actors in sex with multiple partners.Footnote ¹⁷ These gendered prerogatives remained into late-nineteenth century Buenos Aires.

The sexual mores and colonial laws that governed male and female behavior had important implications for abused girls in nineteenth-century porteño courts. In deciding the criminality of defendants, judicial authorities judged the mental, physical, and moral nature of their victims. This was true for those younger than twelve (prepubescent) as well as those older (pubescent).

The central question in cases involving prepubescent girls was how to classify the actions perpetrated against them. Laws only punished acts that involved vaginal penetration, yet most of the cases that came before the courts concerned exterior genital rubbing. In an effort to categorize such actions, officials focused on the victim's mental and physical immaturity. Judges and lawyers alike referenced European experts such as Spanish legislator Florencio García Goyena, who instructed that girls younger than twelve could not consent to sexual actions because they could not reason.Footnote ¹⁸ Borrowing from European medicolegal experts, they also concluded that girls’ physical immaturity mirrored their puerile minds. The most common discussion revolved around how the narrowness of the vaginal canal in prepubescent girls disallowed full penetration by an adult penis, making them “physically in-apt” for sex.Footnote ¹⁹ Because of the natural barrier that girls’ small physical size created, defendants had rarely deflowered their young victims.

Because of their mental immaturity and diminutive physical stature, authorities determined as early as the 1860s that all sexual actions committed with prepubescent girls were violent.Footnote ²⁰ Their lack of physical and intellectual development made them physiological virgins and ignorant of sexual sin, which in turn, made them innocent. Although these conclusions placed the assault of young girls into the legal category of “rape,” lawyers, doctors and judges all continued to focus on the virginal status of victims. This emphasis created a gray area between ideas of innocence and expectations of female moral behavior. As a result, the state punished men who deflowered girls, not necessarily those who used violence against them, and poor girls as young as eight could come under scrutiny if the morality of their caretakers was in question. Ultimately, social gender norms could place girls, even quite young ones, in precarious juridical standing.Footnote ²¹

If prepubescent girls rode a fine line of innocence, those who had entered puberty faced almost insurmountable obstacles to justice. The most important assumption of puberty, widely held within the judicial community, was that girls older than twelve had the mental ability to consent to sex.Footnote ²² The maturation of the mind enabled pubescent girls to understand the value of sexual purity, which gave them the responsibility of protecting it by refusing male sexual advances. However, puberty brought carnal awakening in young females, which made them sexual beings and inherently threatened their virginal innocence. Authorities sought guidance about the sexuality of teenagers in the writings of European medicolegal experts who warned of the menace of masturbation.Footnote ²³ As both “unnatural” vaginal penetration (meaning without a penis) and the epitome of pubescent sensuality, onanism was a pit into which all pubescent girls could fall. In the courtroom, these ideas of the development of pubescence gave female victims the virtually impossible task of proving to judicial authorities that they had not been accomplices in the sexual act that brought them before the court. As a result, their violent attackers and/or deflowerers rarely faced convictions.Footnote ²⁴

Although the sexuality and mental faculties of pubescent girls were central to deciding the criminality of their attackers, norms of correct female behavior also implicated girls in the courtroom. Elite prescriptions of proper comportment relegated women to the home, where they could protect their virginity or honesty. In contrast to domestic security, the environment of the streets posed a very present danger to women.Footnote ²⁵ It exposed them to the rapacious appetites of men, contact that endangered their virginity, honesty, and reputation. In the middle decades of the nineteenth century, for girls younger than eight or nine years of age, the streets may have endangered them physically, but perceptions of their innate innocence could still protect their reputation in court. However, for older youth, the streets not only made them vulnerable to physical attack, but in further undermining their already suspect character, increased the possibility that the state would set their assailants free.Footnote ²⁶

Poor Boys on City Streets and Sodomy Cases in Court

The streets of Buenos Aires also had a corrupting effect on male youth, but for different reasons and with distinct outcomes. By the mid-nineteenth century, public spaces in the city of Buenos Aires had already become homosocial congregating areas for poor boys, who spent their lives working, playing, and loitering outside. For porteño officials, these groups of idle youth posed a serious threat to the social order. After arresting six boys involved in a sexual scandal in 1862, for example, the police officer called them “lost boys (muchachos perdidos), who live[d] without the vigilance of their parents.” He decried that mothers and fathers left their sons “free in the streets, despite knowing the responsibility that they have.” As a result, boys learned “all classes of vice and evils.”Footnote ²⁷ Beneath the condemnation of poor parents who shirked the responsibility to raise their children was an underlying fear of the negative social effects of corrupted youth. The concern was not, as it was with girls, that the streets would destroy the boys themselves, but rather how their perversion imperiled the social order.

Whereas for elites the lives of poor male youth made them antisocial and a threat to society, for boys themselves, their lifestyles made them vulnerable to sexual assault. The judicial record is rife with illustrations of the ways in which the public nature of lower-class life exposed them to physical danger. In 1864, for example, an eleven-year-old was hanging out at a local store when he met three men. The nineteen-year-old trio invited him back to one of their rented rooms where one of the assailants reported that they got him drunk and “took advantage of him like a woman,” despite his screams.Footnote ²⁸ Five years later, eleven-year-old Isodoro was hanging around a public market when his thirty-year-old assailant forcibly took him into a public latrine where an irate crowd eventually found the pair with their pants down.Footnote ²⁹ Whether or not boys imperiled society, the streets certainly exposed them to assault.

Aside from rhetoric that reduced male youth to a collective social threat, the only time authorities discussed them was when they were perpetrators of sexual aggression. In one of the only mentions of age in the Siete Partidas, the law exculpated those younger than fourteen years of age from criminal prosecution for sodomy, regardless of the role that they had played in the act, on the assumption that they did not understand the sinfulness of their actions.Footnote ³⁰ Citing this stipulation, Judge Jacinto Cardenas dismissed charges against five of the six boys involved in a sexual scandal in 1862 because they were younger than fourteen.Footnote ³¹ Although authorities relied on this legal stipulation in the prosecution of young sexual deviants, it had no influence on the treatment of those who came before the courts as the sufferers of sexual assault.

Indeed, the primary concern of officials in all sodomy trials was not the male victims but whether the act, as defined by the Siete Partidas, continued to fall under the vigilance of the state. Along with other Spanish laws, this treatise defined sodomy as same-sex copulation between men, the most dangerous of all sexual transgressions, and punishable by death.Footnote ³² Although by the beginning nineteenth century the prosecution of sodomy had largely disappeared in Spain and its territories in all but name, its continued presence in the laws preoccupied officials in the 1850s and 1860s.

The central controversy officials discussed was whether to continue to prosecute sodomy. Despite the attempts of defenders to argue that modern laws did not punish “acts of lechery,” judges and prosecutors concluded that until another code usurped the Siete Partidas, the act should remain under the purview of the courts.Footnote ³³ Judicial officials also grappled with the type of evidence to accept in such cases. A perennial tension existed between the general lack of evidence of sexual crimes, and the legal principle that the harsher the punishment for a crime, the more proof was required to substantiate it. As an act that the Siete Partidas punished with death, sodomy should have carried the greatest burden of proof.Footnote ³⁴ Yet Spanish law dictated lower evidentiary requirements, making it subject to the legal exception of “privileged evidence” (prueba privilegiada).Footnote ³⁵ This legal precept made it easier to convict a man of sodomy than of other illicit acts.

Because privileged evidence established inequitable treatment for men accused of sodomy, judges, prosecutors, and defenders in mid-nineteenth century Buenos Aires unanimously rejected it.Footnote ³⁶ They relied instead upon the Spanish legal precept of “judicial decision” (arbitrio judicial) to decide guilt and innocence.Footnote ³⁷ Judicial decision left all major judgments in a trial up to the “prudent decision” of the judge.

The final question authorities faced during this time was how to punish sodomy. Judges, prosecutors, and defenders all concurred that the penalty of death was “barbaric” and unsuitable for the level of civilization in Argentina. As a result, they relied on judicial decision to decide punishment, which left it up to the magistrate to establish a penal sanction that was in proportion to the severity of the crime.Footnote ³⁸

Between 1853 and the late 1860s, authorities questioned how to deal with the act of sodomy, while the young victims of the crime never factored into their ruminations. This silence about boys contrasted sharply with contemporaneous discussion of girls, which would continue into the late nineteenth century. The cultural focus on the control of female sexuality meant that officials judged men who assaulted girls primarily by the nature of the victim herself. Because of the exclusive focus on the sexuality of females, there was no place in the social imaginary for young males as sexually subordinate. They were too young to be virile men, yet they were male, and so not held to standards of adult sexuality, as were girls. Gender norms, then, placed victimized young boys in a sort of social and cultural “inbetweenness” and bolstered their legal invisibility. After Tejedor submitted his proposed penal code to Congress in 1865, rhetoric in the courts would begin to shift, bringing male youth into focus for the first time.

Bringing Assaulted Boys into Focus in the Courts

Following liberal legal trends out of Europe, Tejedor only punished the act of sodomy, or anal intercourse, when it was nonconsensual (i.e., took the form of rape). He defined rape as “obliging a woman to suffer sexual approximation against her will” with the use of “physical violence or threats of imminent and actual danger to her body or life.”Footnote ⁴⁰ Men also committed rape if they had sex with a woman deprived of her senses for any reason, or with a girl younger than twelve years of age. Tejedor supplemented this definition with the admonition that the state could prosecute when men's actions caused “visible and appreciable damage,” by using violence against others, offending the public, or causing the corruption of minors. He insisted that only actions proven by “material fact” fell under the vigilance of the justice system. By limiting state prosecution to sexual assaults that resulted in visible physical damage, the new law made the violence used in the perpetration of an act the central, legal constituent of the crime, whereas the age of the victim was a secondary concern.

The final article, which seemed almost an afterthought, punished men convicted of sodomy similarly to those found guilty of rape. “The same punishment of the previous articles [on rape] will apply respectively to the prisoner [accused] of sodomy.”Footnote ⁴¹ This brief, succinct clause decriminalized consensual sodomy, and limited state action to instances in which it was violent, committed against the mentally impaired, or against children younger than twelve years old. By subsuming sodomy under the article on rape, Tejedor maintained the legal focus of Spanish laws on the protection and control of female sexuality.

Tejedor's focus on women manifested in several ways. First, he clearly singled out females as the only explicitly defined victims of sexual assault. He charged that rape forced a woman to suffer sexual advances against her will. He further emphasized this fact by differentiating punishment according to the moral and social status of the female victim: whether she was under twelve years of age, an “honest woman,” married, or a prostitute. Finally, Tejedor only used feminine pronouns, never mentioning, or even alluding to, males. Indeed, he refers only to punishment for the perpetrator of sodomy, without acknowledging its potential victims.

The new law further propagated the emphasis on female, rather than male, victims in the definition of estupro, or deflowering. The article on deflowering was the only other potentially applicable article for punishing those who sexually assaulted boys. Tejedor punished the man who “deflowers a virgin older than twelve and younger than twenty using seduction…” with two to three years of prison.Footnote ⁴² By prioritizing virginity, this stipulation only provided legal recourse to honest or virginal women. It left legally vulnerable any survivors of sexual assault older than twelve who could not prove that they had been virgins or that their attackers had been violent. It also excluded those, such as pubescent boys, whose virginity did not matter.

By institutionalizing inherited ideas about illicit sexual behavior, which focused on the bodies and character of women, the first age of consent laws made the assault of females the basis for judging acts committed against boys. The widespread distribution of Tejedor's code after 1865 served to diffuse his definitions and ideology within the judicial community over a decade before it became provincial law.Footnote ⁴³ As a result, judges and lawyers began to consider boys in their assessment of the criminality of defendants, however, their concern was limited and their application of the law inconsistent. The exceptional cases during these decades, in which the suffering, nature, and youthfulness of male victims factored into official musings, highlight both changes to the execution of justice as well as its limitations.

The way in which the courts dealt with the assault of thirteen-year-old German Castro in 1877, the one conviction of the rapist of a pubescent boy between the late 1870s and late 1880s, illustrates both of these legal trends.Footnote ⁴⁴ It shows how the courts used legal definitions and ideas of sexuality that assumed females as victims and how authorities began to talk about boys in a new way. It also demonstrates how a lack of space in the cultural and legal imaginary for males as sexual victims could potentially protect them during these decades of overlapping legal jurisdictions.

Questions of how to deal with the assault of pubescent male youth emerged after thirty-seven-year-old Pascual Basili raped his thirteen-year-old neighbor, German, in February 1877. After German became an apprentice bricklayer for Basili, Basili asked the youth's mother to let the boy stay in his room so that the two of them could rise early for work. She consented. On the first night, however, Basili purportedly attacked German, leaving him with a venereal disease. After the routine medical examination confirmed that both Basili and German were sick, and Basili's roommate provided damning testimony against him, the judge sentenced him to two years in prison.

Basili appealed his sentence. On review, the Superior Tribunal increased his prison term from two to three years. The justices of the court based their decision on article 254 of Tejedor's code, recently adopted by the provincial congress. Article 254 laid out the punishment—three years of prison—for the man who raped an honest woman (mujer honrada).Footnote ⁴⁵ By citing this stipulation, the magistrates punished the rapist of a thirteen-year-old boy in the same way they would a man who attacked a woman of good repute. Doing so equated the two types of victims.Footnote ⁴⁶

There are two possible explanations for this unlikely juxtaposition. In one sense, the verdict falls within the Spanish legal tradition of seeking direction through jurisprudence. Without a law that directly addressed male rape, the justices used the closest applicable article. It is more likely, however, that the use of article 254 reflects, precisely, the lack of legal antecedent from which to draw. Sodomy had been the only crime in Spanish law that included boys as victims. The new code only punished sodomitic acts when they took the form of rape, but defined all rape victims as female and/or younger than twelve years of age. There was, therefore, no legal definition for the sexual assault of a pubescent boy older than twelve.

Although the law was limited in its scope, a new consideration of German's physical condition, his age, and the negative effects of his contracted venereal disease factored into the court's assessment of Pascual Basili. The district attorney of the Appeals Court, Benjamín Victorica, issued that the “minor age” of the victim, the deceit and force used in the perpetration of the act, and serious physical lesions he suffered (the medical examination reported German's contraction of a life-altering syphilitic infection) all served to increase Basili's punishment from two to three years. Further, when the Appeals Court heard the case, they agreed unanimously that, despite the defense's attempt to paint German as a willing accomplice to the act, he was not. The attention of the magistrates to these details demonstrates a marked change from previous decades when they discussed neither the nature of the victim, his physical state, nor his mental faculties.

The same shift in attention and rhetoric occurred in the way that the state assessed prepubescent victims of assault. Officials began to discuss, although haltingly, the negative effects of venereal infections, and the ages and the nature of young males. In an 1876 case, the court lingered on the physical well-being of the seven-year-old victim, whose parents reported that he was in a very “delicate state” after being attacked by an eighteen-year-old acquaintance.Footnote ⁴⁷ In 1886, the young age of a four-year-old factored into the sentence that the judge gave his sixteen-year-old assailant. Because the victim was younger than twelve, Judge Guillermo Torres classified the act as rape, and sentenced the defendant to a year and a half in prison (a reduced sentence from the prescribed three years because the defendant was a minor).Footnote ⁴⁸

Finally, in 1873, Judge Damien Hudson called an eight-year-old boy “innocent.” This particular case is striking because of its exceptionality and singularity. It was the only time prior to the 1890s that a state official used the same language in discussing a male victim that authorities employed for prepubescent girls. In 1873, Adolfo Arriola told the police that a storekeeper named Paulino Romano had repeatedly “seduced” his son, Ramon, a boy of such a “tender age,” and attempted to “destroy his innocence.” Romano confessed. Judge Hudson then sentenced him to three years in prison, replicating in his verdict the language that Ramon's father had used. He censured Romano for his use of “moral violence” and for abusing the “innocence” of a boy of “such a tender age.”Footnote ⁴⁹ Both Arriola and Judge Hudson linked eight-year-old Ramon's state of innocence to his young age.

The singularity of Ramon's case highlights the otherwise complete absence of the language of innocence in the historical record for this time period.Footnote ⁵⁰ As explained in the previous section, throughout the nineteenth century authorities linked innocence to female virginity. The lack of cultural capital placed on male virginity, then, may account for the dearth of similar language in cases involving prepubescent boys. This paucity suggests that officials did not consider boys to be “innocent” in the same way that they did girls until the turn of the twentieth century, when the meaning of the word shifted.

Indeed, authorities’ discussion of boys remained extremely limited during these decades, and their failure to consider the damage and pain that anal rape could cause suggests a lack of concern over the boys’ well-being. The singular case in which the prosecutor raised the issue of physical harm highlights an otherwise stark silence. After Italian immigrant, Roque Dimare, reported to the police that his ten-year-old son had experienced sexual assault at the hands of the police commissioner and a female accomplice, the fiscal censured the accusation because of its inconsistencies. He focused, specifically, on the lack of physical proof. Experts all agreed, he argued, that “unnatural coitus [was] much more painful than the real form.” Taking the young age of the boy into account, the act should have produced “intense pain,” which would have caused him to “scream or moan.”Footnote ⁵¹ The lack of auditory proof of the boy's suffering called his accusation into question.

The failure of judges and lawyers to consider the effects of assault on boys contrasted with the testimonies of the victims themselves, who clearly articulated feelings of fear, shame, and pain resulting from their traumatic experiences. Thirteen-year-old German Castro, whose story opened this section, failed to inform his mother that his neighbor had attacked him because he was embarrassed by what had happened.Footnote ⁵² Alejandro Manante, a ten-year-old Italian immigrant, similarly did not reveal his rape to his parents in 1875 because he was embarrassed and afraid of getting in trouble.Footnote ⁵³ Nine-year-old José Fogliano also kept his rape a secret for fear of punishment. A month after José was assaulted in 1892, his parents finally noticed his suffering and took him to a doctor. A physical examination revealed he had secondary syphilis all over his body, suggesting that José was experiencing great pain, despite his silence.Footnote ⁵⁴ The lack of discussion surrounding the ramifications of sexual assault on the minds and bodies of young boys, despite their clear effects, highlights the limitations of official concern about male victims.

Official Concerns amidst Competing Legal Traditions

Although judicial authorities intermittently discussed boys in the 1870s, they were more interested in defining the role of the state in the prosecution of sexual assailants. The contours of this function were defined by the awkward coupling of liberal ideals out of Europe and the continued Catholic revulsion against sodomy as the nefarious sin. Following early-nineteenth-century trends stemming from the Napoleonic tradition in Europe, Tejedor limited the state's interference in the private sphere, and redefined its role in prosecuting individual morality. He simultaneously set the law up as the protector of public morality. As a result of these contradictory trends, authorities spent most of their energy arguing over when the state could intervene in sodomy cases and the effects of its prosecution on society.

Liberal legal trends stressed the separation of the public and private spheres and limited the intervention of the state in the private lives of citizens.Footnote ⁵⁵ Adopting this posture, Tejedor echoed the concerns of French criminologist, Adolfe Chauveau, in his notes: “It is enough that justice is forced to proclaim [sodomy], and punish it when the scandal is made public. What would be the consequences of similar intervention by public action? Would it not be to consecrate the magistrate's inquisition in the private life of the citizens…to open, in one word, the sanctuary of the home…?”Footnote ⁵⁶ Adhering to the notion of the sanctity of the private sphere, Tejedor forbade the Argentine state from prosecuting men who chose to engage in consensual anal intercourse.

By decriminalizing sex between consenting individuals, Tejedor also adopted the liberal rejection of the law as the enforcer of morality. He exempted from prosecution “[acts] that are generally covered with a dark veil, not openly perturbing society that is ignorant of them, nor causing damage other than to their authors…”Footnote ⁵⁷ This shift in duty marked a sharp deviation from Catholic law, which had served as the protector of the moral realm.Footnote ⁵⁸ Tejedor advocated removing sodomy from state prosecution because the law no longer monitored people's inner thoughts and private actions, no matter how immoral.

Although he incorporated new liberal traditions, Tejedor's religiously infused language also reflected the continuation of the traditional revulsion against sodomy as the most dangerous of sexual sins. Once again quoting Chauveau, Tejedor rhetorically questioned: “What good would come from discovering so many hidden blunders (torpezas), so many shameful mysteries? What interest does morality have in these infamous revelations? The silence of the law should be approved even if it is only dictated by a feeling of respect for public modesty.”Footnote ⁵⁹ “Hidden blunder,” “shameful mystery” and “infamous revelation” underscore the revulsion against sodomy. However, that this loathing influenced Tejedor's decision to decriminalize consensual, non-reproductive sex reflects the blending of traditional ideas and new liberal ideologies.

The new rhetoric around sodomy, to protect public morality by discontinuing its prosecution, thereby keeping it from public view, mixed old and new legal traditions.Footnote ⁶⁰ On the one hand, Tejedor affirmed the liberal rejection of the state's right to police immoral actions that occurred in private. On the other, he continued to try to protect the moral realm when cases of sodomy potentially harmed the public. The final sentence of his commentary reveals the connection between upholding morality and hiding sodomy: “the silence of the law should be approved even if it is only dictated by a feeling of respect for public modesty.” Despite the liberal belief that the legal and moral realms should be separate, Tejedor sought to police and protect public, external morality through the law.

In the late 1860s, the redefinition of the role of the judiciary in prosecuting sodomy came to dominate trials. Judicial authorities adopted and employed Tejedor's language and ideology in their assessment of accused sodomizers. They demonstrated the same tension between a repugnance of the Catholic sin and the relegation of consensual sex to the private sphere. Benjamín Victorica, fiscal of the Appeals Court, reflected in an 1873 case that sodomy was a crime generally covered by a “veil of secrecy,” which only hurt those who committed it.Footnote ⁶¹

Because it was private, officials viewed state investigations of consensual sodomy as an intrusion of public power into the private sphere. In 1869, the fiscal warned of the danger of conducting “degrading investigations” into the private lives (la vida íntima) of citizens, even though sodomy was a “repugnant crime.”Footnote ⁶² A defense attorney likewise commented, “It has been considered that similar acts against morality should be left whenever possible to the punishment imposed by the conscience.”Footnote ⁶³ In the late 1860s, the judicial community embraced Tejedor's liberal ideological position, affirming the notion that consensual sodomy, although morally reprehensible, should be free of state oversight.

Officials also welcomed Tejedor's reason for ending its prosecution: to protect public morality. In 1875, Benjamín Victorica quoted Tejedor directly when he issued that modern laws had overlooked consensual sodomy “out of a feeling of respect for public morality.”Footnote ⁶⁴ A defender's comment in 1873 that sodomy was “a defect (falta) reproached by our social customs…punished more by social morality than penal law,” suggests a broader adherence to the principles he introduced.Footnote ⁶⁵

The concern of authorities with defining the new function of the state in the prosecution of sodomy, and the coinciding imperative to protect society from exposure to it, diverted attention from the victims of the crime. In 1875, the case of Pascual Basili, the bricklayer who raped his thirteen-year-old neighbor, German, went to the Supreme Court on appeal. The district attorney lamented not the boy's physical suffering (recall that he had contracted a venereal disease) but rather the difficulty of dealing with “such an abominable act” that “offends society, nature and divinity alike.” The primary problem, the prosecutor pointed out, was that modern jurisprudence had “silenced the classification of a similar crime, out of respect for public honesty, and for not revealing abominations whose scandal was even more hurtful than impunity.”Footnote ⁶⁶ The district attorney's musings reflect how authorities prioritized society and the protection of the moral realm in the late 1860s, 1870s, and 1880s. Amidst their focus on the sinfulness of sodomy and its moral dangers, the effects of sexual assault on young victims remained of little consequence.Footnote ⁶⁷

Table 2. Convictions by Age of Victim and Time Period.

The regulations surrounding the denunciation of all “private crimes” in Tejedor's code further marginalized male victims. In the spirit of the law as moral judge, colonial legal antecedents had allowed anyone to report a sexual indiscretion to the authorities.Footnote ⁶⁸ In a sharp deviation from this trend, article 266 of the new law sharply restricted state action. It did so in two ways. First, it limited the ability to report a sexual crime to an “interested party,” either the victim, his or her parents, or the person under whose power he or she was at the time of the assault.Footnote ⁶⁹ Second, the interested party could not simply report to the police, but rather had to formally request an official investigation of a sexual assault.Footnote ⁷⁰ By redefining who could report a sexual crime and how, this article potentially stymied the prosecution of criminals while simultaneously reaffirming the function of the law and the judiciary as the defenders of public morality.

Table 3. State Action toward Private Crimes.

* “State Refuse” includes direct and indirect reference to article 266, parental disappearance during a trial, or the withdrawal of an accusation.

** The “% of Total” cases that the state refused to pursue during the second time period 1869–88, because of lack of an interested party, was 31%, up from the 2% between 1853 and 1868 and 6% between 1888 and 1912.

These regulatory measures made justice more elusive for poor parents. Prior to the interim adoption of Tejedor's code in 1877, the state continued prosecutions despite the refusal of progenitors to participate, many of whom were likely too poor to engage the judicial process. Between 1873 and 1887, when Tejedor's code became national law, although not stipulated in the law, the courts required that the interested party actively participate in the judicial process. When parents failed to do so, judges often ended prosecutions.Footnote ⁷¹ As a result, during this time period, the courts dismissed thirty-two of seventy-two cases because the parent or guardian of the victim opted not to “take part” in the trial.Footnote ⁷²

The case against an Italian shoemaker in 1886 exposes not only the negative impact of article 266 on the execution of justice but also the reasons behind it, which reinforced the focus on society and its protection. In 1886, a policeman arrested Italian cobbler, Vicente Ruperto, after finding him on top of his young coworker, pants down, on a city street. The father of the twelve-year-old victim, Pedro, opted not to participate in the trial that followed. The district attorney then moved to drop the charges according to article 266. “Under all concepts,” he opined, “the law denies forming cases in similar instances when the father or guarding of the victim is not interested…the father or guardian is the legal representative…and when he does not want to press charges his will should be respected, especially when it is the same as the law.”Footnote ⁷³ Despite Ruperto's clear guilt, having been caught in the middle of the act of assaulting his young co-worker, the state prioritized the will of the father over the criminality of his son's assailant.

The district attorney explained the motives behind the prohibition: “In denying the formation of cases, the law has taken into account reasons of the social order and motives of public decorum. Similar cases can be at the same time a scandal, and a public shame….”Footnote ⁷⁴ Despite a vehement argument by the district attorney of the Appeals Court, that article 266 only applied to female victims in cases of rape, deflowering, and abduction, the justices upheld the lower court's decision to drop the charges against Ruperto. His fate demonstrates how article 266 augmented the legal and juridical marginalization of male victims. By limiting the ability of the courts to act in cases of sexual crimes because of questions of “the social order” or “public decorum,” the article reinforced Tejedor's liberalizing impulse to remove the state from the private, moral realm, while simultaneously emboldening it to protect public morality.

Tejedor's code marked a pivotal moment in the codification of law and the prosecution of sodomy in Buenos Aires. The introduction of liberal principles into the Argentine legal paradigm ushered in an era of overlapping ideologies. While judicial authorities attempted to reconcile the revulsion against sodomy with the decriminalization of consensual anal sex, young male victims of assault remained legally and juridically liminal. In the late 1880s, rhetoric surrounding the protection of public morality would phase out, to be replaced with positivist concerns about juvenile delinquency, sexual deviancy, and the intellectual growth of male youth, issues that placed them at the center of the judicial process.

Defining and Protecting Prepubescent Boys as Innocent

In the late 1880s, legal scholars began to expound a vision of childhood based upon intellectual development.Footnote ⁷⁶ They divided prepubescent youth into two groups: those younger than seven and those between the ages of seven and twelve. According to various graduates of the University of Buenos Aires, School of Law, children generally lacked consciousness until the age of seven, although that age could differ according to climate, race, and geography. Between seven and twelve, children became aware of their surroundings but were still weak, impressionable, and ruled by their passions.

Although emotionally volatile, the primary characteristic that intellectuals assigned to children seven to twelve years of age was their lack of reason. Law school graduate, Pedro Melendez, asserted that children possessed only a rudimentary understanding of good and bad and were incapable of judging their actions in a given moment. They, therefore, acted not from rationalization and reflection but from impulse, influenced primarily by their senses.Footnote ⁷⁷ This was in part the result of what another graduate, Amadeo Gras, called the “equally delicate nervous system[s]” of boys and girls, which made them susceptible to the “passions” of jealousy, vanity, cruelty and anger.Footnote ⁷⁸ These scholars attributed such characteristics to children aged seven to twelve irrespective of their sex.

Lawyers incorporated these ideas of emotional immaturity and irrationality into their rhetorical strategies in the courtroom. In 1889, one defender attacked the validity of the testimony of his client's prepubescent victim because he lacked reason. “The minor, Rosendo, is only five,” the lawyer exclaimed, “and the minor Dolores, his little sister, is 4 [sic] years old!! I will not linger on [their testimonies]…because it repulses truth and good sense to believe that [someone] put these declarations in the mouths of those children (criaturas)! They don't have the use of reason!”Footnote ⁷⁹ He denounced their testimonies because they were incapable of recognizing or appreciating facts. “What can they confirm, can they say at that age, that would not be completely false?” The defender dismissed the statements of Rosendo and Dolores because of their mental immaturity.

Like this defender, judicial authorities focused on the mental development of children primarily as it pertained to the value of their testimonies. In 1905, for example, Judge Ernesto Madero linked the truthfulness of a six-year-old victim to his innocence and lack of capacity to deceive. “If during the time [the child] was with [the defendant], he had left him, or another person had consummated the crime, the minor would have said so, since the design to hurt [the defendant] through a false accusation cannot be supposed in a child of his age.”Footnote ⁸⁰ The defender in the same case similarly focused on the six-year-old's mental state, but denounced his testimony as false precisely because it was unbelievable. It is “hardly comprehensible,” he remarked, “how [the boy] could have given a declaration in the terms in which it is formed.”Footnote ⁸¹ In the late 1880s, officials began to account for and debate the intellectual development of young victims.

Along with discussion of their mental faculties, officials also started to discuss boys' ages. After eight-year-old orphan and servant, Plácido, was repeatedly raped by his employer, the district attorney of the Appeals Court recommended confirming the eight-year sentence for his attacker largely because the victim's “young age” (corta edad) was well established.Footnote ⁸² In 1892, a judge ordered a medical examination of a ten-year-old victim in order to determine exactly how old he was at the time of the attack.Footnote ⁸³ The victim's exact age also became the focus of an 1899 rape case. The defender tried to argue that his client's crime was unproven because the court had not established the age of the five-year-old victim. The district attorney concluded, in opposition, that there were no circumstances in which the boy could be older than twelve. He was a “five-year-old in conditions of a woman younger than twelve, whose rape is punished with the same punishment that corresponds to the rapist who uses force or intimidation.”Footnote ⁸⁴

Although the fiscal's argument regarding the five-year-old boy shows that in the late 1890s the criminal tribunals continued to measure the rape of boys by the standards of female victimization, the new focus on their mental development and age shows a dramatic shift in how authorities approached, assessed, understood, and treated young assaulted males. By the following decade, this refocusing would result in the redefinition of “innocence” by age rather than virginity, and the incorporation of boys into the neutered, rather than gendered, juridical category of innocent childhood. Through this process, the courts contributed to redrawing the boundaries of social categories, grouping boys and girls together by their common age, rather than separating females and males by their distinct sexes.

As judicial officials started to discuss the mental development of children at the turn of the century, lawmakers simultaneously changed the penal code to include and protect boys precisely because of their inability to reason. Whereas the first national code, passed in 1887, had institutionalized the gendered definitions of sexual crimes from Tejedor's code, the 1903 Reform Law removed the ambiguities surrounding rape and extended greater legal protection to the very young. It did so in two ways. First, the law defined rape gender neutrally as “sex outside of marriage, with a person of one or the other sex” when the victim was younger than twelve years of age, unable to resist for any reason, and/or when the act was violent.Footnote ⁸⁵ Second, the law removed all mention of the moral character of the female victims, instead predicating punishments for rape exclusively on the age of the victim and the violence employed in the perpetration of the act. Both of these changes anticipated that boys could also be the victims of sexual assault.

Criminal tribunals followed the legal trend toward defining a neuter childhood and defending prepubescent boys, as well as girls, as innocents. The case of the molestation of four-year-old Felix in 1909 illustrates the connections that judicial authorities made among mental immaturity, young age, and gender neutrality.Footnote ⁸⁶ By linking these three characteristics together, they connected innocence to the age of a child, rather than the virginity of a girl.

This notable saga began one Sunday afternoon in mid-November, when fourteen-year-old Enrique Carena took his young neighbor, Felix, with him to his work cleaning cars. In his testimony, Carena described how after arriving he took down the young boy's pants, put him on the floor, wet his own penis with saliva, and tried to penetrate him anally. Carena claimed that he only attempted one time, however, because Felix started to cry. While Enrique Carena's confession ensured a conviction, the case went to the Court of Appeals over the exact crime that the boy had committed, and what his punishment should be.

In a controversy that mirrored contemporary cases involving young girls, the judges of the appellate court hotly debated whether Carena's transgression was “attempted rape” (tentativa de violación) or “dishonest abuse” (ultraje al pudor). The need to more precisely classify his actions arose from the 1903 Reform Law, which included an article on dishonest abuse, thus differentiating between sexual contact that was penetrative (rape) and that which was non-penetrative (abuse).Footnote ⁸⁷ Because the stipulations on rape required penetration, or full consummation of the act, calling Carena's crime, which only involved rubbing, an “attempted rape” would absolve him of guilt and charge. If, however, his crime was an “attack on modesty,” which the law punished whether consummated (fully penetrative) or not, he faced a potential prison sentence.

Leading justice, Daniel Frías, argued for the more serious charge on the grounds that the point of the new stipulation was to protect the innocence of prepubescent girls and boys. He asserted that the punishments for dishonest abuse were created “in the guarantee of infancy.” He opined, “the law considered that before [the age of twelve], minors do not have sufficient discerning to give serious and free consent in their actions.” As a result, “there is always a legal presumption of moral violence in all acts committed against a minor, whose purity can be pawned, his body abused (mancillar), his spirit depraved or his moral feelings and good customs corrupted.”Footnote ⁸⁸

The magistrates voted three to two in favor of Frías's opinion, concluding that the law should protect the innocence of infancy from any and all sexual contact, regardless of the sex of the victim. Those in opposition based their argumentation on the lack of penetration in the current case, rather than on a qualm about the mission of the law to defend young children. The assessment of Judge Frías and the final verdict reveal consensus among officials that before the age of twelve both sexes lacked the intellectual discernment to be able to consent to intercourse. This made any and all sexual action with them morally violent. The unification of new conceptions of youth and legal changes to the definition of rape incorporated male youth into an emerging category of childhood, which defined those under the age of twelve as innocent regardless of their sex or social status, and meritorious of state protection from any form of sexual contact.

A lawyer's condemnation of the plague of sexual delinquency in turn-of-the-century Buenos Aires demonstrates a broader acceptance of the new category of innocent childhood. After his client's eleven-year-old son fell victim to a gang rape by three sixteen-year-olds, Carlos Capmany warned the court of the “sinister legion of sexual delinquents, which wanders our suburban neighborhoods and…satiates its animal-like appetite on innocent childhood, contaminating it with the most degrading vices.”Footnote ⁸⁹ This warning of the danger to “innocent childhood” suggests that by the first decade of the twentieth century, the porteño judicial community had reached consensus regarding the innocent nature of young boys, which linked them to prepubescent girls because of their age. Whereas prepubescent boys became part of a protected, neuter childhood, adolescents, caught in a turbulent, transitionary life phase, would remain vulnerable to attack with impunity.

The Legal and Juridical Vulnerability of Adolescents

The increasing legal and juridical defenselessness of pubescent boys began with their mental and physical development. In the 1890s, the same legal scholars who expounded on the mental immaturity of prepubescents began to employ the term “adolescence” to refer to a phase in the life of boys initiated by the onset of puberty. Legal scholars conceptualized adolescence, first and foremost, as a time of transition and constant becoming. Law school graduate, Amadeo Gras, suggested that the pubescent boy, “seem[ed] like a dangerous man with the naivety (ingenuidades) of the child, fickle, timid and audacious at the same time, frank and false in one word, with the instincts of primitive man, rich in imagination and lacking in reflection.”Footnote ⁹⁰ This bipolar characterization perfectly captures the transitory nature of adolescence, when boys were stuck, however temporarily, in a state of “inbetweenness,” between childhood and adulthood, no longer boys, but not yet men. Elites worried about this phase of life because it was unpredictable and volatile.

Authorities believed that the onset of puberty dissolved childhood innocence into a state of turbulent, emotional upheaval. Leading positivist hygienist, José Ingenieros, described how, “In the adolescent of both sexes there is generally a nebulous, vague and disturbing restlessness…It dominates the psychology of youth, putting a certain melancholy in their spirits inclined towards fantasy…[They] lose the notion of what is real…[and] seek solitude and shadow.”Footnote ⁹¹ Psychological upheaval accompanied this emotional disarray to make adolescents fickle and unpredictable. Although intellectuals acknowledged that physical growth was part of this process, they focused primarily on the mental development of boys: in puberty they began to understand the effects and implications of their actions and were, therefore, responsible for them.

In the courts, these ideas of adolescent mental growth primarily affected how authorities treated the perpetrators of sexual crimes. The increasing influence of positivist criminology on the porteño criminal justice system resulted in the implementation of mental examinations that measured the ability of defendants to commit crime (delinquir). If the courts found them mentally capable, boys were responsible and, therefore, guilty. In the case of Enrique Carena, for example, a fourteen-year-old who raped his four-year-old neighbor, his mental examination revealed that he had the “capacity to commit crime” as well as the “right level of education to differentiate between good and bad.”Footnote ⁹² As a result, the court sentenced him to a year and a half in prison. Another routine examination found a sixteen-year-old defendant responsible for his action because he had “sufficient intelligence to know and appreciate the moral and juridical value of the crime of which he is accused.”Footnote ⁹³ As a result of his understanding, he received a six-year sentence.

In contrast to those who served time because of their ability to discern, young sexual perpetrators found incapable of understanding the implications of their actions were, perhaps paradoxically, set free. Based on his mental examination, Judge Eduardo French concluded that fourteen-year-old Miguel Ianoni was a “true degenerate, incapable of proceeding with the discerning necessary to be held criminally responsible.”Footnote ⁹⁴ The court dropped the charges against him. Such was also the fate of sixteen-year-old Vicente Rubino, who an examining doctor found to be a “degenerate” with a “sexual perversion.” This made him an “irresponsible subject, without moral discerning, completely incapable of understanding the nature of the act of which he is accused.”Footnote ⁹⁵ The court absolved and released him. Increased understanding of the changes wrought by puberty, combined with new categories of delinquency introduced by positivist criminology, caused judicial authorities to focus on the mental development of young sexual perpetrators.

For the victims of sexual aggression, the mental maturity of adolescence dictated whether or not a pubescent boy could consent to sex. As a result, judicial authorities began to require victims prove that their rape had been violent rather than consensual. As the first section showed, this demand had always posed an obstacle for teenage girls, placing them at a disadvantage in the court because authorities assumed that they were sexually malicious. As officials extended the same obligation to adolescent boys at the turn of the century, cultural biases and new positivist stigmas further complicated their juridical standing. The central problem was that their role as passive participants in sex transgressed acceptable norms of masculinity. The fate of thirteen-year-old Rosario D'Rosa illustrates how the emerging stigmatization of sexually passive men, ideas of adolescent intellectual development, and traditional ideas surrounding consent versus violence combined to harm victimized teenage youth in turn-of-the-century courts.

This episode, which exposes the vulnerability of adolescents, began on the evening of April 7, 1892, when a twenty-four-year-old laborer, José Vallejos, offered thirteen-year-old Rosario three pesos to help take some horses to a nearby corral.Footnote ⁹⁶ The victim and the defendant relied on common tropes of violence versus consent to relay what happened next. Rosario claimed that the interaction was violent: Vallejos led him to a solitary place in the northern part of the city, pushed him to the ground, made him remove his pants and raped him. In a common defense, Vallejos placed the onus on his victim: Rosario had initiated everything, offering himself for three pesos. He confessed to placing his penis near Rosario's anus, but denied inserting it.

Although a confession such as this should have ensured a conviction for Vallejos, the routine medical examination thwarted a guilty verdict. Because the doctor found signs of repeated insertion of foreign objects in the boy's anus, he concluded that Rosario was “accustomed to coitus with those of his sex.” He, therefore, labeled him a “passive pederast.” As a result of this conclusion, Judge Juan Soneyra dismissed the charges against Vallejos. In his estimation, despite Rosario's claim that he had been violently assaulted, he was not a victim but an accomplice.

The designation “passive pederast” carried several ideological assumptions that helped to exculpate Vallejos. The first was the contours of proper masculinity and, by extension, the naturalness of heterosexuality.Footnote ⁹⁷ Leading turn-of-the-century criminologist and psychologist, Francisco de Veyga, claimed that men were naturally active, sexual conquerors who had an instinct to play the penetrative role in sex. At puberty, he asserted, adolescent males gained a “natural sexual power” (potencia sexual nativa) and a desire to penetrate women.Footnote ⁹⁸ In contrast, “sexual inverts” were men who wanted to be sexually passive. De Veyga viewed this inclination as an “unnatural” sign of mental illness: “The fundamental idea of their psychosis assigned a purely passive end [to intercourse].”Footnote ⁹⁹ The sexual submissiveness of “inverts” made them like women, whose natural inclination, in direct opposition to that of men, was to be penetrated.

These ideas of sexual inversion infiltrated and influenced the legal community. The lawyer of a plaintiff in 1907, for example, warned of the danger sexual inverts posed to society. “Sexual delinquency because of inversions of the sexual function is one form of delinquency which attacks society,” he cautioned. Because it “violates the laws of the species and acts against its own conservation, [it] is an infected focus of social contagion.”Footnote ¹⁰⁰ The lawyer cautioned that this type of delinquency was especially insidious because society tended to underestimate the danger of sexual inverts.

A heteronormative schema of sexuality that condemned sexual passivity in males as perverted carried important implications for boys who came before the courts as victims of crime. Because judicial authorities considered the penetration of men unnatural, they immediately placed greater responsibility on the submissive partner.Footnote ¹⁰¹ “Passive pederasts” transgressed acceptable norms of masculinity and as a result, officials were more likely to see them as guilty. This was especially true if there was any suspicion that they had been anally penetrated before.

The more severe treatment of the passive partner marked a distinctive shift from the way the courts had viewed the act previously. Although officials had differentiated between active and passive participants in sodomy as early as the 1860s, they followed colonial laws in placing greater responsibility on the active party.Footnote ¹⁰² In a case of consensual sodomy between adult males in 1869, the fiscal concluded that the “voluntary agent,” who had acted with premeditation and violence, had more responsibility than the “involuntary and violated patient.” He cited French criminologist, Adolfe Chauveau, who opined that the agent of an “attack against customs” should be punished more severely.Footnote ¹⁰³

Whereas they acknowledged differing responsibility in the 1860s, in the 1870s, the courts had begun to recognize habitual pederasty as a condition. In 1873, a defender argued that his client had repented of his immoral actions, which showed he retained feelings of “delicacy and dignity.” He should not, therefore, be confused “with a habitual pederast.”Footnote ¹⁰⁴ The designation “habitual pederasty” contained inherent assumptions about consent to a sexual encounter, which automatically negated the use of violence in the perpetration of an act.

The label passive pederast, likewise, assumed repetitive action, which was commensurate with perpetual consent. The terms active and passive pederast intimated that a man customarily engaged in homo-male anal sex, in either the dominant or submissive role. A passive pederast repeatedly acquiesced to being anally penetrated, and his sanction necessarily negated the use of violence in all scenarios. Signs of repeated anal penetration of thirteen-year-old Rosario d'Rosa, whose story opened this section, combined with a lack of physical evidence of violence to make him a willing participant in the eyes of the court, thus undermining his status as a victim of assault.

That the courts did not apply the label passive pederast to prepubescent boys highlights the judicial vulnerability of adolescents at the beginning of the twentieth century. In 1901, the father of ten-year-old Silvio Coleta reported his assault in a public latrine.Footnote ¹⁰⁵ The doctor who conducted the routine examination concluded that “acts of pederasty” had been executed on the minor for some time, and the boy himself confessed that he had engaged in such activities on two other occasions. The defense argued that Silvio was a minor who was “habituated to the exercise of this class of acts to which he voluntarily lends himself for a price.”Footnote ¹⁰⁶ Despite clear evidence of his likely complicity, neither the doctor nor the judge called the ten-year-old a “passive pederast.” Rather, Judge Ernesto Madero sentenced his attacker to eight years in prison, a verdict the Superior Tribunal confirmed. This outcome reaffirms the trend in the first decade of the twentieth century toward protecting children younger than twelve years of age as innocent.

Although officials did not explicitly say why they did not label Silvio a passive pederast, it is likely because of ideas of mental development. The label assumed the ability to consent, and in the first decade of the twentieth century, authorities viewed prepubescents as incapable of doing so. This meant they could not be accomplices, or passive pederasts. The label passive pederast and its exclusive application to pubescent boys reflects emerging ideas of the mental development of youth at the turn of the twentieth century, as well as the increasing juridical vulnerability of sexually assaulted adolescents.

The dynamics of exclusion, which resulted from the medical examination that stigmatized thirteen-year-old Rosario, remained in the law, further imperiling pubescent boys like him. The first national code in 1887 had institutionalized Tejedor's definitions of rape and estupro, which focused exclusively on female victims. The 1903 Reform Law then included young boys as victims of either rape or sexual abuse. However, because Rosario was older than twelve and bore no signs of physical violence, those articles failed to provide him with legal recourse. Additionally, although the law redefined rape in 1903, it retained the connection between estupro and female moral character (merely replacing the qualifier “virgin” with “honest”).Footnote ¹⁰⁷ This also left Rosario exposed because he was a boy and his honesty did not matter. In the end, notions of proper male sexuality, mental maturity and consent, the positivist stigma surrounding sexual inversion, and Argentina's new age of consent legislation undermined Rosario D'Rosa's search for justice.