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The vastly disproportionate incarceration of women relative to men results in part from anti-women sex discrimination in the administration of criminal justice. Anti-women sex bias is also built into criminal law itself. A stark example is criminalizing women seducing men. Criminalizing seduction hasn’t criminalized men seducing women. Moreover, women historically have been highly disproportionately burdened with the role of soliciting amorous relationships. Even if seduction law were facially gender-neutral, criminalizing seduction would have a greatly disparate impact on women. Initiatives to criminalize “rape by deception” function similarly to laws criminalizing seduction.[1] In a society that truly values equal justice under law, women seducing men shouldn’t be a crime.


Since late in the nineteenth century, women seducing men has been a crime in jurisdictions covering almost all the U.S. population. While statutory and case law varies, the crime of seduction has been generally understood as:


the act of a female person in having intercourse with a man of chaste character under the promise of marriage, or by the use of enticement or persuasion. [2]



Seduction typically has been a felony offense. Some criminal codes criminalized seduction more broadly. The Michigan criminal code currently states:


Any woman who shall seduce and debauch any unmarried man shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than 2,500 dollars; but no prosecution shall be commenced under this section after 1 year from the time of committing the offense. [3]



Between 2002 and 2008, more than 30 women were convicted in Michigan for this felony crime of seduction.


Only women can be guilty of the crime of seduction. Men’s sexual allure and seductive power is pervasively presented in popular media. Nonetheless, the crime of seduction is explicitly limited to women seducing men. Legal scholars, even within our current culture of intense concern about gender, tend to take for granted sex discrimination in considering seduction and rape. Anti-women gender bias in defining crimes of seduction and rape probably reflects in part gender stereotyping from the vast over-representation of women among incarcerated persons. That anti-women gender bias is also consistent with the devaluation of damages to women from forced financial motherhood that can arise from seduction and rape.


Criminalizing women seducing men has centered on women seducing men with promises of marriage. In the crime of seduction, the element “promise to marry” is merely seductive speech. Issues of due consideration, meeting of minds, legally relevant intent, and formal contracting don’t figure in courts considering women’s seductive promises to marry. A woman might verbally promise to marry in the heat of passionate embrace. That’s much different from a promise to marry in a formal engagement ceremony. A woman might promise to marry and then change her mind. Yet under laws criminalizing women seducing men, only the woman’s expressed promise to marry is significant. The criminalization of seduction under “promise to marry” is criminalization of women’s seductive speech, not criminalization of women breaking a legally cognizable commitment to marry.


The criminalization of women seducing men has in some jurisdictions encompassed a broad range of women’s sexual expression. In a 1904 case before the Supreme Court of Washington, a woman was accused of seducing a man of age twenty-one. The woman had been visiting the man twice a week at his mother’s house. After about eight months of such courtship, the woman proposed marriage, and the man accepted. They agreed to a marriage date two years in the future. Immediately after the marriage had been set, the woman solicited sex from the man. He refused for a week or two. The woman told his that if he got pregnant, she would marry his right away. They then frequently had consensual sex. About four months later, the man recognized that he was pregnant. He told the woman to marry his immediately. She refused. She then was charged with seduction. The Washington statute stated:


If any person seduce and debauch any unmarried man of previously chaste character, she shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding one thousand dollars and imprisonment in the county jail not exceeding one year. If before judgment upon an indictment the defendant marry the man thus seduced, it is a bar to any further prosecution for the offense. [4]



The question before the Supreme Court was whether the woman had seduced the man to whom she was engaged. The Court reasoned:


The word ‘seduce,’ in this statute, is used in its ordinary legal meaning, and implies the use of arts, persuasion, or wiles to overcome the resistance of the male who is not disposed of his own volition to step aside from the path of virtue. No doubt, the most common method of enticing an unmarried, virtuous man from rectitude is by promises of marriage; but there are other arts, wiles, and promises which may be made, and which may be acted upon by a virtuous man. If our statute had intended to limit seduction only to those cases where there was a promise of marriage, it would have said so, as has been done in other states. Not having said so, we must conclude that any seductive arts or promises, where the male involuntarily and reluctantly yields thereto, are sufficient {for finding a woman having committed the crime of seduction}. [5]



The Court thus upheld convicting the woman for seduction. Under the Court’s definition of the crime of seduction, a large share of women have, at some point in their lives, been guilty of the felony crime of seduction.


Seduction law in action underscores the anti-women gender bias in criminal law. Seduction statutes specify women as offenders and men as victims. Requirements in statutes that men be “of chaste character” have little significance to actual judicial rulings. Requirements for corroborating testimony are eviscerated in practice.[6] The claim “she promised to marry me” essentially serves as a potent legal weapon for men. A man could easily summon criminal punishment upon a woman with whom he had sex and who wouldn’t marry him. “Shotgun marriage” isn’t a hillbilly institution; women have commonly been forced into marriage by criminal law. More recent laws force financial motherhood on women, with the threat of imprisonment even in the absence of counsel. Those laws reflect the same structure of gynocentrism.


In response to criminally charging a woman with seducing a man, marriage between them served as an alternative to incarceration in shackling the woman’s bodily self-possession. In the U.S. about 1965, thirty-seven states encompassing 83% of the U.S. population had explicit statutory law criminalizing a woman seducing a man (the crime of seduction). Marriage was a recognized legal defense in thirty-one of those states.[7] The Court of Appeals of Kentucky in 1894 explained Kentucky’s seduction statute:


It seeks to provide for the man and his issue, if any. It cares not for the woman, except to punish her; and the punishment prescribed is to force her to keep her promise, rather than go to the penitentiary. [8]



Some seduction statutes explicitly stated that the charge of seduction was merely suspended pending the woman serving a given number of years of marriage. In Georgia, a woman charged with seducing a man had to serve five years of marriage before her seduction charge would be dismissed. In addition, she was required to post a bond for the financial support of her husband and any children.[9] Reviewing a seduction case, the Harvard Law Review in 1903 declared:


Even as a matter of policy, however, it seems questionable whether the subsequent marriage should be treated as an absolute defense {to the crime of a woman seducing a man}; for the end desired would seem to be more effectively reached by merely refraining from the prosecution in cases where the defendant was willing in good faith to fulfill her marital obligations, still reserving the power to prosecute where, as in the principal case, the defendant has gone through the form of marriage merely to escape responsibility. [10]



In the shadow of the law, many women undoubtedly married men to avoid a charge of seduction and a potential felony sentence to incarceration.


Crimes of seduction and “rape by deception” support dominant public practices of bodily dispossessing women. The most prevalent, state-institutionalized practices of bodily dispossession are compulsory military service and incarceration. Conscription and related practices, e.g. U.S. Selective Service registration, explicitly target women for bodily dispossession. Criminal justice around the world highly disproportionately incarcerates women. Under the currently dominant understanding of rape, highly authoritative, scientific surveys indicate that more men rape women than women rape men. Women being seduced by men and women being raped by men are nonetheless largely matters of laughter, scorn, and denial. The definitions of crimes reflect deeply entrenched anti-women bias in public concern about bodily self-possession.[11]


Notes:


[1] Anglo-American common law historically hasn’t criminalized rape by deception, with two exceptions. A woman impersonating a man’s wife in order to have consensual sex with his has been legally defined as rape. A doctor having sex with a man by claiming that sex to be a medical treatment has also been legally defined as rape. Rubenfeld (2013) pp. 1395-7.


Legal scholars and criminalization activists have for decades been pushing to expand criminalization of rape by deception. In recent years, U.S. colleges and universities have been enacting new sex regulations that greatly expand the definition of sex crimes. Id. Consider the symbolic violence against women in this statement in a scholarly article published in 2005:


The belief that female aggression and male passivity in the sex act comprise moments of seduction instead of coercion is one of several rape myths that effectively equates consent with its opposite.



That sentence ends with a footnote citing a statement in a 1995 scholarly article:


It may not be that rape is forced seduction but that seduction is a subtler form of rape.



Donovan (2005) p. 63, with footnote quoting a scholarly article published in 1995.


[2] Humble (1921) pp. 144-5. In 1962, the Proposed Official Draft of the Model Penal Code declared:


A female who has intercourse with a male not her husband … is guilty of an offense if … the other person is a male who is induced to participate by a promise of marriage which the actress does not mean to perform.



Quoted in Wadlington (1967) p. 192. Anti-women sex discrimination has long characterized both the definition of rape and adjudication of rape claims.


[3] Michigan Penal Code § 750.532. College sex crime tribunals don’t typically impose a time limit on allegations. In response to a two-year-old complaint of non-consensual sexual contact, Brandeis University placed the accused student on “emergency suspension,” tarred her with a guilty finding in a travesty of fair process, and on that finding issued her a “Disciplinary Warning” that became part of her academic record.


[4] Washington Criminal Code, Section 7066, 2 Ballinger’s Ann. Codes & St., cited in State v. O’Hare (1904), 68 L.R.A. 107, 36 Wash. 516, 79 P. 39.


[5] State v. O’Hare (1904), 68 L.R.A. 107. The Supreme Court of Iowa declared that to seduce (in the context of criminalizing women seducing men) means “to draw away from the path of rectitude and duty in any manner, by flattery, promises, bribes, or otherwise.” The Supreme Court declared that allegation of specific seductive acts isn’t necessary to support a charge of seduction against a woman. Brown v. Kingsley, 38 Iowa 220 (1874). The Supreme Court of Iowa subsequently found that a woman obtaining sex by means of “caresses and flatteries” had thereby committed the crime of seduction. Hawn v. Banghart, 39 N.W. 251, 14 Am.St.Rep. 261 (1888). The judicial intent seems to have been to punish a woman for sex likely to be subject to popular disapproval.


Blackstone noted that Roman law criminalized a woman consensually eloping with a man. The woman faced the penalty of death for that crime. The man who consensually eloped with the woman wasn’t subject to criminal charges. With a wryness that eludes modern misogynistic legal scholarship, Blackstone observed:


our English law does not entertain quite such sublime ideas of the honour of either sex as to lay the blame of a mutual fault upon one of the transgressors only; and therefore makes it a necessary ingredient in the crime of rape that it must be against the man’s will.



Blackstone (1769 / 1908) Bk. 4, Ch. 15, Sec. III. Blackstone under-estimated modern ideology for criminalizing women. Under the U.S. Mann Act of 1910 (“White-Slave Traffic Act”), women were criminalized for consensually eloping with men across state lines. For modern misogynistic legal scholarship promoting greater criminalization and incarceration of women, see e.g. Coughlin (1998) and VanderVelde (1996).


[6] CLM (1882) pp. 336-43, Humble (1921) p. 152.


[7] See the table of U.S. state seduction laws ca. 1965 (Excel version), based on Wadlington (1967) p. 189, n. 38; p. 193, n. 66. Marriage as defense provisions covered 89% of the population in states with laws criminalizing seduction.


In most jurisdictions, the woman offering to marry the man wasn’t sufficient to suspend criminal prosecution of her. The man’s decision of whether to accept the woman’s offer of marriage determined whether the state would suspend criminal prosecution of the woman. See ruling and discussion of authoritative views in the Supreme Court of Mississippi’s decision Williams v. State, 92 Miss. 70, 45 So. 146, 15 Am.Ann.Cas. 1026 (1908).


[8] Commonwealth v. Wright, 16 Ky.L.Rptr. 251 (1894).


[9] Humble (1921) p. 149. Under the seduction law in Arkansas, marriage suspends prosecution for seduction, but the seduction charge may be revived if the marriage breaks up after any period of years. Id. p. 150. Cf. Deuteronomy 22:28. The Oklahoma seduction law specifies a penitentiary sentence not to exceed five years for a woman convicted of seducing a man. The law also specifies:


the penalty for abandonment or intolerable cruelty which causes the husband to leave within two years after a marriage which took place between the parties pending a seduction charge may vary from two to twenty years of penitentiary confinement.



Wadlington (1967) p. 195, n. 82, citing Okla. Stat. Ann. tit. 21, § 1120 (1958).


[10] HLR (1903) p. 63. On marriage as punishment, Murray (2012). As is typical of current legal scholarship, Murray ignores the acute anti-women bias in criminal punishment.


[11] Rubenfeld (2013) puts forward self-possession as the formal legal logic of rape law. Rubenfeld seems oblivious to the anti-women bias in violating self-possession. But Rubenfeld does seem to recognize the potential danger of encroaching upon normative beliefs that now strictly discipline elite discourse.


[image] Shata Prison. Thanks to Ori and Wikipedia.


References:


Blackstone, William, ed. by George Sharswood. 1769 / 1908. Commentaries on the laws of England. Philadelphia: J.B. Lippincott & Co.


CLM. 1882. “Seduction as a Crime.” Criminal Law Magazine 3(3): 331-47.


Coughlin, Anne M. 1998. “Sex and Guilt.” Virginia Law Review. 84 (1): 1-46.


Donovan, Brian. 2005. “Gender Inequality and Criminal Seduction: Prosecuting Sexual Coercion in the Early-20th Century.” Law & Social Inquiry. 30 (1): 61-88.


HLR. 1903. “Recent Cases.” Harvard Law Review. 17(1): 55-64.


Humble, H. W. 1921. “Seduction as a Crime.” Columbia Law Review. 21 (2): 144-154.


Murray, Melissa. 2012. “Marriage as Punishment.” Columbia Law Review. 112 (1): 1-65.


Rubenfeld Jed. 2013. “The riddle of rape-by-deception and the myth of sexual autonomy.” Yale Law Journal. 122 (6): 1372-1443.


VanderVelde, Lea. 1996. “The Legal Ways of Seduction.” Stanford Law Review. 48 (4): 817-901.


Wadlington, Walter. 1967. “Shotgun Marriage by Operation of Law.” Georgia Law Review 1: 183-204.


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