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Innocent Children and Passive Pederasts: Sodomy, Age of Consent, and the Legal and Juridical Vulnerability of Boys in Buenos Aires, 1853–1912

  • Julia Ogden

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She received her PhD from the University of Texas at Austin. She would like to thank Gautham Rao for his support, and the anonymous peer reviewers for their time, energy and meaningful suggestions that helped make this article stronger. She would also like to give special thanks to Ann Twinam, Donna Guy, Juandrea Bates and Claudia Rueda for reading early drafts of this article and for providing invaluable insight into its conceptualization and improvement. A Fulbright Grant to Argentina made the research for this article possible.

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1. Archivo Histórico de la Provincia de Buenos Aires, La Plata, Argentina (hereafter AHPBA), Fondo Juzgado del Crimen (hereafter FJC), Cuerpo 34, Anaquel 2, Legajo 153, Expediente 1 (henceforth 34-2-153-1), 1853.

2. AHPBA, FJC, 41-3-173-2, 1857.

3. Archivo General de la Nación, Buenos Aires, Argentina (hereafter AGN), Fondo Tribunales Criminales (hereafter FTC), 2nda entrega, Letra M, Legajo 132 (hereafter M-132), 1903, 35.

4. This article is part of research into the ways in which the passage of age of consent legislation and the introduction of liberal principles into Argentine criminal law affected the treatment of male and female youth. That study is based on an analysis of 233 criminal court cases that occurred between 1853, when lawmakers drafted the first National Constitution, and 1912, after which time all of the criminal records from the AGN were subsequently destroyed.

5. The vast majority of abused children in the criminal court cases in this study were poor. The use of the judicial system primarily by the working class of Buenos Aires followed trends from earlier time periods. Lower-class residents of the city almost exclusively resorted to the courts because elites feared that reporting to the authorities would stain their honor. See Socolow, Susan, “Woman and Crime: Buenos Aires 1757–97,” Journal of Latin American Studies 12 (1980): 52; and Barreneche, Osvaldo, Crime and the Administration of Justice in Buenos Aires, 1785–1853 (Lincoln: The University of Nebraska, 2006), 35.

6. Odem, Mary, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885–1920 (Chapel Hill: University of North Carolina Press, 1995); Robertson, Stephen, Crimes Against Children: Sexual Violence and Legal Culture in New York City, 1880–1960 (Chapel Hill: The University of North Carolina Press, 2005); Robertson, Stephen, “Age of Consent Law and the Making of Modern Childhood in New York City, 1886–1921,” Journal of Social History 35 (2002): 781–98; Levine, Philippa, “Sovereignty and Sexuality: Transnational Perspectives on Colonial Age of Consent Legislation,” in Beyond Sovereignty: Britain, Empire and Transnationalism, c. 1880–1950, ed. Grant, Devin, Levine, Philippa, and Trentmann, Frank (New York: Palgrave, 2007), 1633; Sarkar, Tanika, “A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal,” Feminist Studies 26 (no. 3: Points of Departure: India and the South Asian Diaspora) (2000): 601622; and Sarkar, Tanika, “Rhetoric against Age of Consent: Resisting Colonial Reason and Death of a Child-Wife,” Economic and Political Weekly 2836 (1993): 1869–78.

7. Whereas I use “victim” as a descriptive term to identify those who came before the courts as sufferers of a criminal act, Argentine historian, Betina Riva, presumes the word to be primarily prescriptive. She examines how factors such as physical signs of force and resistance and an individual's prior conduct influenced how doctors and lawyers defined who was an “acceptable victim” in the eyes of the state. Both uses have their limitations. On the one hand, my descriptive use projects a state of victimhood onto all who came before the courts, when some may not have been. After all, a culture of same-sex sexuality emerged in Buenos Aires between 1880 and 1930, and in a context of widespread male sex and child prostitution, many boys may have consented to the encounters that brought them before the courts. For more on the culture of same-sex sexuality see Pablo Ben, “Male Sexuality, the Popular Classes and the State: Buenos Aires, 1880–1955” (PhD diss., University of Chicago, 2009). On the other hand, Riva's prescriptive conceptualization, while demonstrating how sociocultural norms and assumptions influenced the course of justice, relies heavily on contemporary theories of masculinity as well as early-twentieth-century trends such as Freudian psychology and sexology, which are not necessarily found in the court cases themselves and fail to account for change over time. See Betina Riva, “¿Ser o no ser? La construcción jurídico-médica de la víctima masculina en los delitos sexuales (Bs. As., 1863–1921),” in Actas de las VIII Jornadas de Jóvenes Investigadores en Historia del Derecho, Facultad de Humanidades y Ciencias de la Educación (Universidad Nacional de la Plata) (2017); and Cuerpos que hablen: Algunas consideraciones en torno a los delitos sexuales en Buenos Aires durante la segunda mitad del siglo XIX,” in Revista Cambios y Permanencias 7 (2016): 113–39.

8. Ideas of the nature of childhood as a distinct phase of life grew out of both the Enlightenment and Romanticism. Enlightenment thinkers such as John Locke focused primarily on the mental innocence of children, conceiving of them as a blank slate (tabla rasa), which meant they were incapable of good and evil. Romantic thought then attributed an asexuality to children, which made them morally innocent. In the nineteenth century, this notion became tied up in ideas of middle- and upper-class domesticity, which placed, primarily girls, in the home, under care of their mothers and safe from danger.

9. Premo, Bianca, Children of the Father King: Youth, Authority and Legal Minority in Colonial Lima (Chapel Hill: The University of North Carolina Press, 2005); Milanich, Nara, Children of Fate: Childhood, Class, and the State in Chile, 1850–1930 (Durham, NC: Duke University Press, 2009); Blum, Ann, Domestic Economies: Family, Work and Welfare in Mexico City, 1884–1943 (Lincoln: University of Nebraska Press, 2009); Guy, Donna, “The State, the Family, and Marginal Children in Latin America,” in Minor Omissions: Children in Latin American History and Society, ed. Hecht, Tobias (Madison: The University of Wisconsin Press, 2002), 139–64; Guy, Donna, “Parents before the Tribunals: The Legal Construction of Patriarchy in Argentina,” in Hidden Histories of Gender and the State in Latin America, ed. Dore, Elizabeth and Molyneux, Maxine (Durham, NC: Duke University Press, 2000), 172–93; Juandrea Bates, “Family, Childhood and Civil Law in Buenos Aires, 1871–1930” (PhD diss., University of Texas at Austin, 2015); and Saenz, Eugenia Rodriguez, “¿Víctimas inocentes o codelincuentes? Crimen juvenil y abuso sexual en Costa Rica en los siglos XIX y XX,” in Entre la familia, la sociedad y el estado, niños y jóvenes en América Latina (siglos XIX–XX), ed. Potthast, Barbara and Carreras, Sandra (Madrid: Iberoamericana Vervuert, 2005), 173201.

10. These decades witnessed the establishment of the modern nation state in Argentina. In the process, the jurisdiction of the criminal courts in Buenos Aires changed. Until 1880, the city of Buenos Aires was also the capital of the province of Buenos Aires, and the courts served the entire province (receiving cases from justices of the peace (jueces de paz) in the countryside). In 1880, the city of Buenos Aires became the national capital (the city of La Plata was built in 1882 to be the capital of the province of Buenos Aires). After the federalization of the city, the criminal courts shifted jurisdiction. They no longer served the province, which developed its own judicial system, but rather heard cases exclusively from the rapidly expanding national capital.

11. Carlos Tejedor was an active political and legal figure. He was a member of the early-nineteenth-century literary group, the Asociación de Mayo, director of the national library, member of the Chamber of Deputies, a legislator, foreign minister, and ambassador to Brazil. He wrote manuals for justices of the peace in the countryside, became the head of the Department of Criminal and Mercantile Law at the University of Buenos Aires, and served as governor of Buenos Aires from 1878 to 1880. For more on Tejedor, see Levaggi, Abelardo, Historia del derecho penal argentino (Buenos Aires: Editorial Perrot, 1978), 184; and Cutolo, Vicente Osvaldo, Nuevo diccionario biográfico argentino (1750–1930) tomo 7, “Sc-Z” (Buenos Aires: Editorial Elche, 1985), 290–93.

12. The Siete Partidas was the first comprehensive and uniform body of laws in thirteenth-century Castile, and it became the most influential charter on crime and punishment in the Indies. It remained so through the colonial period, despite a whole body of laws created to govern the colonies. Because independence failed to produce new laws to replace the Partidas, it then reigned in many Latin American countries until the late nineteenth century.

13. Use of the phrase “moral character” is my attempt to capture the historical importance, both legal and cultural, of female virginity, chastity, and good reputation. Socially, a woman of good “moral character” remained a virgin until marriage, was faithful to her husband, and if widowed, lived a cloistered life in her home.

14. Siete Partidas, part. 7, tít. XIX, “Of those who sleep with women of religious orders, with a widow who lives honesty in her home, or with virgins by means of flattery or deceit, not using force” and tít. XX, Of those who force, or abduct virgins, women of religious orders, and widows who live honestly.” Las Siete Partidas, glosadas por el Licenciado Gregorio Lopez (Madrid: Boletín Oficial del Estado, 2004). Earlier laws had stipulated that consensual sex was not illegal. The Fuero Juzgo (1241) had exculpated any man who had sex with a single woman of his own social caliber who willingly engaged in the act (libro 3, tít. 4, ley 8). Fuero Juzgo or libro de los jueces (Barcelona: Ediciones Zeus, 1968). The Fuero Real (1255) reaffirmed the legality of consensual intercourse (libro 4, tít. 7, ley 7). Fuero Real de Alfonso X el sabio, edición, estudio y glosario de Azucena Palacio Alcaine (Barcelona: PPU, 1991).

15. Napoleonic laws from the early nineteenth century were the first to include the category of an “attack on modesty” (l'attentat à la pudeur), which was the legal precursor to sexual abuse and did not require penetration. Argentine lawmakers did not incorporate the category (ultraje al pudor) into the penal code until 1903.

16. Age was a tertiary consideration. Only the Siete Partidas had acknowledged it. The law prohibited the prosecution of girls under the age of twelve as accomplices in cases of incest (Siete Partidas, part. 7, tít. xviii, ley 2).

17. See, for example, Johnson, Lyman and Lipsett-Rivera, Sonya, eds., The Faces of Honor: Sex, Shame and Violence in Colonial Latin America (Albuquerque: University of New Mexico Press, 1998); and Christiansen, Tanja, Disobedience, Slander, Seduction and Assault: Women and Men in Cajamarca, Peru 1862–1900 (Austin: University of Texas Press, 2004). For how these ideas of male and female sexuality manifested among immigrant populations in Buenos Aires at the turn of the twentieth century, see Ben, “Male Sexuality,” 91–109.

18. Goyena commented, “It is a constant rule of law that the student or pre-pubescent cannot acquiesce nor tolerate her own harm, and that by neither her tacit nor express will can she worsen her condition.” Florencio García Goyena, Código criminal español segun las leyes y práctica vigentes, comentado y comparado con el penal de 1822, el francés y el inglés, tomo II (Madrid: Imprenta de R. Calleja, 1843), 145, nos. 1445–47.

19. An examining physician commented, for example, that there had been no penetration because of the “resistance of the vagina” of the eight-year-old girl “to the volume of the virile member” of her purported assailant. See AHPBA, FJC, 34-2-153-19, 1853, 3.

20. They quoted sixteenth-century jurists. Prospero Farinacci ruled that with prepubescent girls “rape is presumed to be committed by force except when clearly proven otherwise” (Praxis y Theorica Criminalis, L. 147, No. 45). Antonio Gómez similarly concluded, “Some interpreters presume of law and by law violence or force in the deflowering of all girls that have not reached puberty” (Variarum Resolutionum).

21. See, for example, AHPBA, FJC, 41-5-204-14, 1860. After the violent rape of a nine-year-old girl, despite physical evidence of the assault, Judge Sisto Villegas dismissed the charges against her rapist. Because she lived in a prostíbulo with her godmother, who was a prostitute, the judge questioned her moral character and concluded that although her assailant may have raped her, he had not deflowered her.

22. In 1865, the doctor who examined a fifteen-year-old victim concluded, “it seems the girl volunteered to consummate the coitus.” That a physician could tell consent based on a physical examination speaks to both the focus on physical signs of violence in determining acquiescence as well as the level of official assumption that influenced all cases. See AHPBA, FJC, 38-1-241-4, 1865, 1. Betina Riva also stresses the centrality of physical signs of resistance in doctors’ prescriptions of an “acceptable victim.” See Riva, “Cuerpos que hablen.”

23. French authorities Joseph Briand and Ernest Chaudé cautioned: “Nobody denies that young girls of an erotic temperament often use diverse mechanisms to satisfy their desires…there are many examples of the deplorable effects of masturbation.” Briand, Joseph et Chaudé, Ernest, Manuel complet de médicine légale, sept. éd. (Paris: J.B. Bailliére et Fils, 1863), 88.

24. Because of this presumed ability, the courts categorized the vast majority of sexual cases involving teenagers as estupro, or deflowering.  Because of the removal of a woman's will through promises of marriage, many historians translate estupro as “seduction.” However, given its use in nineteenth-century porteño law and courts, I translate it as “deflowering.” Both Carlos Tejedor's code and the national code (1887) read: “el que estupre á una mujer virjen…empleando la seducción…” (“He who sleeps with a virgin…using seduction”). This definition equates estupro with intercourse with a virgin––deflowering––whereas seduction is the means by which a man achieves this goal. Judicial authorities employed the term estupro in the same way.

25. This ideology forms part of what Brazilian anthropologist, Roberto da Matta, called the “house–street binary,” a metaphor in which the private space of the home is ordered, natural, and feminine and the street is public, disordered, anonymous, and physically and morally dangerous. See Roberto da Matta, Casa y a rua: Espaço, cidadania, mulher e morte no Brasil (Sao Paulo: Brasiliense, 1985). This association existed throughout Latin America. For how it manifested in the province of Buenos Aires, see Sedeillán, Gisela, “Los delitos sexuales: la ley y la práctica judicial en la Provincia de Buenos Aires durante el período de codificación del derecho penal argentino (1877–1892),” Historia Crítica 37 (Jan.–April 2006/2007): 100–19.

26. Historians have highlighted the virtual impossibility of proving that a sexual assault was violent in cultures in which heterosexual sex was considered naturally consensual, gender norms encouraged male aggressiveness, and the law protected patriarchal prerogatives. See, for example, Guy, Donna, “Rape and the Politics of Masculine Silence in Argentina,” in Changing Men and Masculinities in Latin America, ed. Gutmann, Matthew (Durham, NC: Duke University Press, 2003), 370–91; Piccato, Pablo, City of Suspects: Crime in Mexico City, 1900–1931 (Durham, NC: Duke University Press, 2001), 120; and Findlay, Irene, “Courtroom Tales of Sex and Honor: Rapto and Rape in Late-Nineteenth-Century Puerto Rico,” in Honor, Status and Law in Modern Latin America, ed. Caulfield, Sueann, Chambers, Sarah, and Putnam, Lara (Durham, NC: Duke University Press, 2005), 212.

27. AHPBA, FJC, 41-5-213-16, 1862, 3.

28. AHPBA, FJC, 381-234-37, 1864, 3.

29. AHPBA, FJC, 38-3-287-16, 1869.

30. Las Siete Partidas, P. 7, tit. 21, ley 2. The law indicated that even if they consented, those younger than fourteen years of age were not to be put to death because “minors do not understand how serious the offense is which they commit.” This stipulation also appears in P. 7, tit. 1, ley 9, which directed that a boy younger than fourteen could not be accused of any licentious crime.

31. AHPBA, FJC, 41-5-213-16, 1862.

32. The Fuero Juzgo stipulated the castration and imprisonment of both men involved in sodomy if they had consented to the act (L. 5, tit. 5, leyes 5 and 6). The Fuero Real then mandated the hanging of both men by their feet on the third day after their public castration (L. 4, tit. 9, ley 2). The Recopilación de las Leyes de Castilla (1567) specified death by burning at the stake and ordered the confiscation of the belongings of “sodomites” (L. 8, tit. 21, ley 2). The Novísima Recopilación (1805) reproduced the stipulations (L. 12, tit. 30, leyes 1 y 2).

33. AHPBA, FJC, 41-5-213-16, 1862.

34. For example, the public defender claimed in 1858 that in cases of sodomy, “it is indispensable to have all the more complete proof, the more terrible the punishment assigned by the laws.” AHPBA, FJC, 41-4-187-28, 1858, 15.

35. Privileged evidence was proof that the law accepted in the prosecution of some crimes but excluded from others. Joaquín Escriche, “Prueba Privilegiada,” in Diccionario razonado de legislación y jurisprudencia, nueva éd. (Paris: Librería del Rosa, Bouret y Ca, 1851), 546. Generally, the Siete Partidas required corroboration among at least three witnesses, and prohibited co-conspirators from testifying against each other. However, because of the lack of evidence of, and especially eyewitnesses to, sodomy, King Philip II had ruled in 1592 that the courts could accept either three contradictory testimonies or a fourth witness, even if he were a participant in the crime. See Los códigos españoles concordados y anotados. Leyes de la nueva recopilación que no han sido comprendidas en la novísima, Tomo 11 (Madrid: Imprenta de la Publicidad, 1850), 257. Also Novísima recopilación de las leyes de España, tomo V, libro XII.

36. See, for example, AHPBA, FJC, 38-3-286-41, 1869, 32.

37. Arbitrio judicial was already in postcolonial law by the 1850s. See law no. 144, sect. 4, cap. 3, art. 14. Registro oficial de la república Argentina, que comprende los documentos espedidos desde 1810 á 1821 (Buenos Aires: Imprenta Especial de Obras, 1879), 446.

38. For men convicted of sodomy in Buenos Aires through the 1880s, this equated to two to four years of armed service, hard labor, and/or public works. Of the fifteen sampled cases of sodomy between 1853 and 1868, six resulted in a similar sentence. Of the forty-three that occurred between 1853 and 1888, there were twelve such sentences (see Table 2).

39. For more on the theoretical foundations of Tejedor's code see Düve, Thomas, “¿Del absolutismo ilustrado al liberalismo reformista? La recepción del Código Penal Bávaro de 1813 de Paul J.A. Feuerbach en Argentina y el debate sobre la reforma del derecho penal hasta 1921,” Revista de Historia del Derecho 27 (1999): 125–52; and Leiva, Alberto David, “La enseñanza penal de Carlos Tejedor,” Revista de Historia del Derecho 26 (1998): 195209.

40. Ley 2, tit. 2, art. 1 in Tejedor, Carlos, Proyecto de código penal para la república Argentina (Buenos Aires: Imprenta del Comercio del Plata, 1866): 318–19.

41. Ibid., ley 2, tit. 2, art. 5, 318–19.

42. Ibid., ley 2, tit. 3, art. 1, 321–22.

43. Until 1880, the tribunals in the city of Buenos Aires served the entire province of Buenos Aires. In 1878, it was the provincial congress that provisionally adopted Tejedor's code as law. The national congress made it law a decade later in 1887.

44. AGN, FTC, 2nda entrega, B-10, 1877.

45. Law #1140. See Ketzelman, Federico and de Souza, Rodolfo F., comps., Colección completa de leyes del estado y provincia de Buenos Aires desde 1854 a 1929 (Buenos Aires: M. Boucau y Cia, 1932), 456–57. This numbering differs from that of Tejedor's original submission.

46. See also AGN, FTC, 2nda entrega, B-69, 1896. The district attorney references the same article on the rape of an honest woman (art. 128, inc. 3 in the 1887 national code), which illustrates the use of a female compass to navigate sodomy cases into the 1890s.

47. AGN, FTC, 2nda entrega, O-3, 1876.

48. AGN, FTC, 2nda entrega, B-26, 1885.

49. AGN, FTC, 2nda entrega, R-3, 1873, 12–13, 32–34. See also AGN, FTC, 2nda entrega D-16, 1884. In 1884, a father claimed that a man had abused the “age and innocence” of his son, but authorities did not replicate his language.

50. Of the sixty-five total cases, forty-three occurred before 1888, and the victim was prepubescent in thirty-one  (see Table 1). Of all of the judges in those cases, Judge Damien Hudson was the only official to call a prepubescent male innocent.

51. AGN, FTC, 2nda entrega, D-12, 1882, 120.

52. AGN, FTC, 2nda entrega, B-10, 1877.

53. AGN, FTC, 2nda entrega, P-9, 1875.

54. AGN, FTC, 2nda entrega, B-52, 1892.

55. The division between public and private space was a central tenet of the classical school of criminology. Following the model of the Bavarian penal code of 1813, Tejedor categorized crimes as either private or public. For more on the private/public divide in the Bavarian code see Hull, Isabel, Sexuality, State and Civil Society in Germany, 1700–1815 (Ithaca, NY: Cornell University Press, 1996), 333–70.

56. Adolphe Chauveau, Théorie du Code Pénal (1843), in Tejedor, Proyecto de código penal, 319.

57. Tejedor, Proyecto de código penal, 318–19.

58. See Tomás, Francisco y Valiente, El derecho penal de la Monarquía absoluta (siglos XVI – XVII – XVIII) (Madrid: Editorial Tecnos, 1969); and Brundage, James, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987).

59. Tejedor, Proyecto de código penal, 319.

60. Historian Cristian Berco linked this silencing to larger processes of state formation as Argentine leaders attempted to project a civilized, heterosexual nation to the world. See Berco, Cristian, “Silencing the Unmentionable: Non-Reproductive Sex and the Creation of a Civilized Argentina, 1860–1900,” The Americas 58 (2002): 419–41.

61. AGN, FTC, 2nda entrega, R-3, 1873, 46.

62. AHPBA, FJC, 38-3-284-27, 1869, 24.

63. AHPBA, FJC, 38-1-234-37, 1864, 52.

64. AGN, FTC, 2nda entrega, P-9, 1875, 27.

65. AGN, FTC, 2nda entrega, R-3, 1873, 40–41.

66. AGN, FTC, 2nda entrega, B-10, 1877, 50.

67. Although Basili's case demonstrates that the courts could use the law to protect pubescent boys, it was anomalous. Between 1869 and 1888, only six of the twenty-eight cases (including Basili's) ended in a conviction. The victims in the other five cases were younger than twelve years of age. The vast majority of sodomy cases ended in acquittals because of a lack of evidence, especially when victims were adolescents. Of the sixty-five total cases, less than a third (twenty) ended in convictions, and in seventeen of those, the victim was twelve years old or younger (see Table 2).

68. Las Siete Partidas, P. 7, tits. 18, 19 and 20, ley 2. The rule was the same for sodomy: P. 7, tit. 21, ley 2.

69. In studying “private initiative” in rural areas of the province of Buenos Aires, Betina Riva found that justices of the peace initially only accepted a victim's father or husband as an “interested party.” They also failed to recognize the realities of rural life in which families often did not live together. Many times this fact impeded the appearance of the patriarch before the courts. This changed slowly over time. See Riva, “La iniciativa privada en los delitos sexuales (Bs.As. 1863–1921),” in III Jornadas de Jóvenes Investigadoras/es en Derecho y Ciencias sociales, Memoria Académica (3 al 5 de octubre de 2012). http://www.memoria.fahce.unlp.edu.ar/trab_eventos/ev.2868/ev.2868.pdf (accessed October 3, 2018). In contrast to Riva's findings, in the city of Buenos Aires judicial authorities always accepted denunciations from women as well as men. Discrepancies in my findings about instancia privada raise important questions about other differences in the execution of justice in rural versus urban settings prior to 1880, and provincial versus federal courts after 1880.

70. Law no. 1140, in Ketzelman and de Souza, Colección completa de leyes, 455. Libro 2, tit. 3, no. 5, art. 3 in Tejedor's original text, Proyecto de código penal. The article reads: The court “will not proceed to form a lawsuit for [rape, deflowering, and abduction] except by the accusation (acusación) or petition (instancia) of the offended woman (la interesada), or of the person under whose power she found herself when the crime occurred.” However, anyone could report to the authorities and the state could act of its own volition (proceed de oficio) if the crime involved a “prepubescent that does not have parents or a guardian.” In 1883 Congress discussed changing this stipulation, which it finally did in the National Code of 1887. The new law allowed either an accusation (acusación) or simple denunciation (denuncia), but required it still be made before a judge rather than to the police. See sec. 1, tit. 3, cap. 5, art. 141, Código penal de la República Argentina, edición oficial (Buenos Aires: Imprenta de Sud América, 1887), 46.

71. Gisela Sedeillán found that article 266 similarly disadvantaged poor women in the southern department of the province of Buenos Aires. In this rural setting without a significant juridical presence, a lack of material resources, high levels of illiteracy, and great geographical distances to the nearest justice of the peace often stymied women's search for justice. Local justices of the peace conducted the initial criminal investigation (sumario) and were often at odds with requirements of magistrates in the city, where the criminal courts were located until 1880. See Sedeillán, “Los delitos sexuales.”

72. These numbers include cases with female victims. Of the fifteen sodomy cases during this time period, it was a question in seven. Although authorities only began to reference article 266 after the interim adoption of Tejedor's code in 1877, the question of whether to pursue cases from office, and under what circumstances, emerged in 1873 and extended beyond 1887 (see Table 3).

73. AGN, FTC, 2nda entrega, V-16B, 1886, 14.

74. Gisela Sedeillán attributes two motives to article 266: to guard family privacy and to protect the accused against false accusations (Sedeillán, “Los delitos sexuales,” 105, 115). Whereas Tejedor highlighted the first motive in his commentary, Sedeillán references Argentine legal historian, Abelardo Levaggi, to support the second motive. Although this impetus falls within the liberal impulse to safeguard individual rights and freedoms, it never appears in any of my sources.

75. Massive immigration, urbanization, and modernization brought increased crime and labor unrest to the city of Buenos Aires after 1880. These new threats to the social order led governing elites to try to understand and control what they viewed as the criminality of the lower classes. See Rodriguez, Julia, Civilizing Argentina: Science, Medicine and the Modern State (Chapel Hill: The University of North Carolina Press, 2006); Ruibal, Beatriz, Ideología del control social: Buenos Aires, 1880–1920 (Buenos Aires: Centro Editor de América Latina, 1993); and Terán, Oscar, Positivismo y nación en la Argentina (Buenos Aires: Puntosur, 1987).

76. Although this time period coincides with the emergence of psychology as a specialization in Europe, where experts were considering questions of child development and mental disorders, it would not appear in Argentina until later in the twentieth century. Rather, at the turn of the century, lawyers, criminologists, doctors, hygienists, and other elites, informed by positivism and the advances of psychology in Europe, were at the forefront of asking and answering these questions. For more on the history of psychology in Argentina, see Lucía Rossi, Florencia Ibarra, and Claudia Ferro, “Historia de la Psicología en la Argentina,” in Revista de la Historia de la Psicología en Argentina, no. 2, Psicología en Argentina: Indicios, Antecedentes y Modalidades de la Formación Sistemática, Presencia en la Profesionalización Universitaria 2 (2009): 52–69.

77. Melendez, Pedro, Breve estudio sobre menores delincuentes y escuela correccional (Buenos Aires: Imprenta T. Nettekoven e Hijo, 1900), 29.

78. Gras, Amadeo, La criminalidad en los niños (Buenos Aires: Almagro, 1896), 32. Gras insisted that differences did not exist between the sexes in these early stages of infancy: “the child, male as much as female, has an equally delicate nervous system [in early infancy]…for which it is not possible to establish any distinction between the two sexes.” It was, precisely, this lack of differentiation that created a neuter childhood.

79. AGN, FTC, 2nda entrega, B-42, 1889, 49.

80. AGN, FTC, 2nda entrega, P-131, 1905, 40–41.

81. Ibid., 35.

82. AGN, FTC, 2nda entrega, P-77, 1896, 31.

83. AGN, FTC, 2nda entrega, B-52, 1892. This process mirrored cases involving female victims when the courts were unable to determine their ages using the Civil Birth Registry created in 1884.

84. AGN, FTC, 2nda entrega, N-21, 1899, 28.

85. L. I, sec. 1, tit. 3, cap. 2, art. 127, in Código Penal de la República Argentina; nueva edición conforme al texto oficial con las modificaciones introducidas por la Ley de Reformas y con todas las leyes complementarias relativas al mismo (Buenos Aires: J. Lajouane & C.ia, Editores, 1913), 10–11.

86. AGN, FTC, 2nda entrega, C-177, 1909. See also AGN, FTC, 2nda entrega, P-131, 1905.

87. L. 2, tit. 3, cap. 2 and 3, art. 19, in Código penal de la República Argentina (1913). Article 19 replaced articles 127–38 from the 1887 code, which dealt with “Crimes against Honesty.” Art. 19, letter (a) dealt with rape. See footnote 85. Article 19, letter (f) punished the person who dishonestly abused someone with any of the circumstances of rape but without intercourse.

88. AGN, FTC, 2nda entrega, C-177, 1909, 45.

89. AGN, FTC, 2nda entrega, V-32, 1908, 109.

90. Gras, La criminalidad, 18.

91. Ingenieros, Jose, “Patología de las funciones psicosexuales—nueva classificación genética,” Archivos de Psiquiatría y Criminología 9 (1910): 8. Ingenieros and his contemporaries began to use the term “adolescent” with regularity at the turn of the century. However, in their preoccupation with the perceived plague of juvenile delinquency in the city, a problem conceived of as principally male, they only discussed the adolescence of boys at length.

92. AGN, FTC, 2nda entrega, C-177, 1909, 22–23.

93. AGN, FTC, 2nda entrega, V-32, 1908, 31.

94. AGN, FTC, 2nda entrega, I-12, 1907, 40–41.

95. AGN, FTC, 2nda entrega, R-123, 1906, 47–48. Mental development was one of various factors that contributed to a boy's perceived degeneracy. It formed part of a complex web of dynamics that also included his level of formal education, his relationship to his family, his work ethic, whether he had a history of vagrancy, and his moral understanding.

96. AGN, FTC, 2nda entrega, V-34, 1892. See also AGN, FTC, 2nda entrega, L-60, 1895. A medical examination also labeled a sixteen-year-old a “habitual pederast” and accomplice.

97. In the past decade, historians have begun to historicize masculinity as a social and cultural construct. See Gutmann, Changing Men and Masculinities; and Macías-González, Víctor and Rubenstein, Anne, eds., Masculinity and Sexuality in Modern Mexico (Albuquerque: University of New Mexico Press, 2012). Also, Ben, “Male Sexuality.”

98. de Veyga, Francisco, “Inversión sexual adquirida,” Archivos de Psiquiatría y Criminología 2 (1903): 200201. Through his study of “inverts” held in police lock up, de Veyga uncovered a whole underworld of men partying, loving, and even marrying in turn-of-the-century Buenos Aires. His publications have been a treasure trove for historians seeking to recover a homosexual past. See Bao, Daniel, “Invertidos Sexuales, Tortilleras and Maricas Machos: The Construction of Homosexuality in Buenos Aires, Argentina, 1900–1950,” Journal of Homosexuality 24 (1993): 183220; and Salessi, Jorge, Médicos, maleantes y maricas. Hygiene, criminología, y homosexualidad en la construcción de la nación Argentina (Buenos Aires, 1871–1914) (Rosario: Beatriz Viterbo Editora, 1995). These works are part of a larger historiography of homosexuality in Latin America. For an overview, see Nesvig, Martin, “The Complicated Terrain of Latin American Homosexuality,” Hispanic American Historical Review 81 (2001): 689729.

99. de Veyga, Francisco, “El amor en los invertidos sexuales,” Archivos de Psiquiatría y Criminología 2 (1903): 338.

100. AGN, FTC, 2nda entrega, V-32, 1908, 44.

101. The stigmatization of the passive role in same-sex male intercourse is a common trope throughout Latin America. See Nesvig, “The Complicated Terrain,” 692–93 and 716–17.

102. The Fuero Juzgo had dictated the castration and imprisonment of both men if they consented, but exculpated the victim of violence (l. 5, tit. 5, leyes 5 and 6); replicated in the Fuero Real (l. 4, tit. 9, ley 2).

103. AHPBA, FJC, 38-3-284-27, 1869, 24.

104. AGN, FTC, 2nda entrega, R-3, 1873, 29. See also AGN, FTC, 2nda entrega, C-101, 1896. The examining doctor noted that the eight-year-old victim showed signs of the introduction of the foreign body into his anus but “no signs of habitual pederasty.”

105. AGN, FTC, 2nda entrega, B-88, 1901.

106. Ibid., 47.

107. Art. 19, letter “b”, in Código penal de la república Argentina (1913), 10. The article reads: “Punishment will be three to six years when the victim is an honest woman, older than twelve years, and younger than fifteen…”

108. See footnote 30.

109. Legal scholar Kate Sutherland highlights how similar gender norms, cultivated in patriarchal societies, expose male youth in the United States today. She notes that the inclusion of males in contemporary age of consent laws has failed to increase the number of charges against older women. This “raises questions about the extent to which parents, police and prosecutors adhere to the idea that males, even very young males, are always initiators of sex with full capacity to consent.” See Sutherland, From Jailbird to Jailbait: Age of Consent Law and the Construction of Teenage Sexualities,” William and Mary Journal of Women and the Law 9 (2003): 119.

She received her PhD from the University of Texas at Austin. She would like to thank Gautham Rao for his support, and the anonymous peer reviewers for their time, energy and meaningful suggestions that helped make this article stronger. She would also like to give special thanks to Ann Twinam, Donna Guy, Juandrea Bates and Claudia Rueda for reading early drafts of this article and for providing invaluable insight into its conceptualization and improvement. A Fulbright Grant to Argentina made the research for this article possible.

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
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