Between protection and punishment : children, sexual crimes and law in Buenos Aires, 1853-1912

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2015-12

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This dissertation examines how “children” emerged as a discrete social group through the codification of penal law in Argentina, and the prosecution of sexual deviance in the criminal courts of Buenos Aires. Between 1853 and 1912, as lawmakers drafted, and redrafted, a national penal code, they fundamentally altered the meaning of illicit sexuality from colonial legal antecedents. Spanish laws had punished the acts of rape, deflowering, incest, and sodomy because they defiled female chastity or offended God. The national penal code censured these actions when committed with individuals younger than a certain age. This redefinition of criminal sexuality institutionalized the notion of childhood “innocence,” and extended protection to youth until the age of sixteen. An analysis of 230 criminal court cases reveals how, as a result of these legal changes, age became the deciding factor in the prosecution of sexual crimes, and judicial authorities began to consider, and treat, lower-class girls and boys as “children.” This shift in perspective caused magistrates to extend state protection to poor youth who, due to elite assumptions of appropriate behavior and sexuality, had been previously excluded. Despite new visions of childhood, however, the perpetuation of cultural and ideological biases among judicial authoritis ensured that some individuals continued to exist outside the realm of official preservation. This work demonstrates how social boundaries were redrawn in the modern period, and argues for the central importance of the law in the process of state formation in Latin America. In doing so, it provides important contributions to literature on crime, childhood, and sexuality. The creation of a protected social group characterized by age reconfigured traditional associations that had been drawn along gender and class lines. Illuminating this process provides an alternative vision of the liberal state. The hesitancy of the judiciary to intervene in the sexual lives of lower-class families recasts the dominant historiographical view of governments eager to intrude into the private sphere. Additionally, the protection of poor children in the courts reveals how turn-of-the-century elites not only criminalized poor youth but also began to protect them prior to the emergence of the welfare state.

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