Boardwalk Empire and the Age of Consent

As the Boardwalk Empire series finale approaches, we are now going to see Sheriff Nucky Thompson “make a deal with the Commodore that will settle his future” in the flashbacks. We have already seen a lot of that future and for Nucky, it hasn’t exactly been a barrel of laughs, always having to go to war to hold on to what he has and in the last episode, “Friendless Child”, being forced to his knees and having to hand over the whole shebang to Lucky Luciano and Meyer Lansky. And we already know that Nucky’s “original sin” was his part in the rape of 13-year-old Gillian Darmody at the hands of the Commodore.

But do we know what the age of consent and rape laws were in New Jersey in 1897? For most of the 19th century, the age of consent in many states was around 10 years old. The table linked to shows that New Jersey’s age of consent was 10 in 1880. That had changed before the turn of the century and before Gillian Darmody ever met Nucky or the Commodore. New Jersey raised the age of consent from 10 to 16 in April of 1887. See “The Legal Status of Women” (1897), p. 105.

There has been some speculation over whether Boardwalk Empire’s Commodore Louis Kaestner should be classified as a hebephile (sexually attracted to the 11-14 age group), a term that didn’t even exist until 1955. The age of consent laws indicate, however, that the Commodore might have been sexually active with young girls legally, at least until the law was changed in New Jersey. Now we are not defending the Commodore. We said legally, not morally. We are just trying to take a look at the crime the way it may have been looked at when it happened by a court of law in New Jersey.

We don’t even know how old the Commodore is supposed to be in 1897. John Ellison Conlee, the actor who plays the part is 46, but let’s assume the Commodore is 40, the same age Louis Kuehnle was in 1897. He would have been 30 when the law was changed.

Then there is the question of punishment. According to the same book linked to above, New Jersey’s penalty for rape in 1887 was “”A fine not exceeding $1,000 or imprisonment at hard labor for any term of years not exceeding fifteen years, or both.” The author, Jessie Saunders, points out that in practice, the law still was “virtually in favor of men, matching the inexperience of a girl of ten to sixteen or eighteen against the weakness of depravity of mature men.” In one case she says, “The fracture of the girl’s arm has been denied as proof of sufficient resistance.”

In the same time period, we found evidence of a crime on the New Jersey books, a high misdemeanor, that seemed like something that may have been offered as a plea bargain type of deal to someone caught after scooping up a child under the age of 16 on the boardwalk, taking her somewhere and “deflowering” her. The penalty was a fine of $1,000 or 5 years in prison or either. The penalty was changed in 1900, but exactly to what is not specified. It’s listed right after rape and abduction on this list.

Physically maiming another person (mayhem) carried a more severe penalty ($1,000 fine or 7 years in jail, or both). In short, the lawmakers of the 19th and early 20th century didn’t have a clue of how much psychological damage sexual assault inflicted on a child, or if they did, just didn’t give a damn.