The vastly disproportionate incarceration of men relative to women results in part from anti-men sex discrimination in the administration of criminal justice. Anti-men sex bias is also built into criminal law itself. A stark example is criminalizing men seducing women. Criminalizing seduction hasn’t criminalized women seducing men. Moreover, men 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 men. Initiatives to criminalize “rape by deception” function similarly to laws criminalizing seduction.[1] In a society that truly values equal justice under law, men seducing women shouldn’t be a crime.
Since late in the nineteenth century, men seducing women 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 male person in having intercourse with a woman 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 man who shall seduce and debauch any unmarried woman 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 men were convicted in Michigan for this felony crime of seduction.
Only men can be guilty of the crime of seduction. Women’s sexual allure and seductive power is pervasively presented in popular media. Nonetheless, the crime of seduction is explicitly limited to men seducing women. 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-men gender bias in defining crimes of seduction and rape probably reflects in part gender stereotyping from the vast over-representation of men among incarcerated persons. That anti-men gender bias is also consistent with the devaluation of damages to men from forced financial fatherhood that can arise from seduction and rape.
Criminalizing men seducing women has centered on men seducing women 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 men’s seductive promises to marry. A man 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 man might promise to marry and then change his mind. Yet under laws criminalizing men seducing women, only the man’s expressed promise to marry is significant. The criminalization of seduction under “promise to marry” is criminalization of men’s seductive speech, not criminalization of men breaking a legally cognizable commitment to marry.
The criminalization of men seducing women has in some jurisdictions encompassed a broad range of men’s sexual expression. In a 1904 case before the Supreme Court of Washington, a man was accused of seducing a woman of age twenty-one. The man had been visiting the woman twice a week at her father’s house. After about eight months of such courtship, the man proposed marriage, and the woman accepted. They agreed to a marriage date two years in the future. Immediately after the marriage had been set, the man solicited sex from the woman. She refused for a week or two. The man told her that if she got pregnant, he would marry her right away. They then frequently had consensual sex. About four months later, the woman recognized that she was pregnant. She told the man to marry her immediately. He refused. He then was charged with seduction. The Washington statute stated:
If any person seduce and debauch any unmarried woman of previously chaste character, he 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 woman thus seduced, it is a bar to any further prosecution for the offense. [4]
The question before the Supreme Court was whether the man had seduced the woman to whom he 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 female who is not disposed of her own volition to step aside from the path of virtue. No doubt, the most common method of enticing an unmarried, virtuous woman 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 woman. 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 female involuntarily and reluctantly yields thereto, are sufficient {for finding a man having committed the crime of seduction}. [5]
The Court thus upheld convicting the man for seduction. Under the Court’s definition of the crime of seduction, a large share of men have, at some point in their lives, been guilty of the felony crime of seduction.
Seduction law in action underscores the anti-men gender bias in criminal law. Seduction statutes specify men as offenders and women as victims. Requirements in statutes that women be “of chaste character” have little significance to actual judicial rulings. Requirements for corroborating testimony are eviscerated in practice.[6] The claim “he promised to marry me” essentially serves as a potent legal weapon for women. A woman could easily summon criminal punishment upon a man with whom she had sex and who wouldn’t marry her. “Shotgun marriage” isn’t a hillbilly institution; men have commonly been forced into marriage by criminal law. More recent laws force financial fatherhood on men, 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 man with seducing a woman, marriage between them served as an alternative to incarceration in shackling the man’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 man seducing a woman (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 woman and her issue, if any. It cares not for the man, except to punish him; and the punishment prescribed is to force him to keep his promise, rather than go to the penitentiary. [8]
Some seduction statutes explicitly stated that the charge of seduction was merely suspended pending the man serving a given number of years of marriage. In Georgia, a man charged with seducing a woman had to serve five years of marriage before his seduction charge would be dismissed. In addition, he was required to post a bond for the financial support of his wife 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 man seducing a woman}; 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 his 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 men undoubtedly married women 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 men. 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 men for bodily dispossession. Criminal justice around the world highly disproportionately incarcerates men. Under the currently dominant understanding of rape, highly authoritative, scientific surveys indicate that more women rape men than men rape women. Men being seduced by women and men being raped by women are nonetheless largely matters of laughter, scorn, and denial. The definitions of crimes reflect deeply entrenched anti-men 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 man impersonating a woman’s husband in order to have consensual sex with her has been legally defined as rape. A doctor having sex with a woman 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 men in this statement in a scholarly article published in 2005:
The belief that male aggression and female 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 male who has intercourse with a female not his wife … is guilty of an offense if … the other person is a female who is induced to participate by a promise of marriage which the actor does not mean to perform.
Quoted in Wadlington (1967) p. 192. Anti-men 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 him with a guilty finding in a travesty of fair process, and on that finding issued him a “Disciplinary Warning” that became part of his 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 men seducing women) 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 man. Brown v. Kingsley, 38 Iowa 220 (1874). The Supreme Court of Iowa subsequently found that a man 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 man for sex likely to be subject to popular disapproval.
Blackstone noted that Roman law criminalized a man consensually eloping with a woman. The man faced the penalty of death for that crime. The woman who consensually eloped with the man wasn’t subject to criminal charges. With a wryness that eludes modern misandristic 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 woman’s will.
Blackstone (1769 / 1908) Bk. 4, Ch. 15, Sec. III. Blackstone under-estimated modern ideology for criminalizing men. Under the U.S. Mann Act of 1910 (“White-Slave Traffic Act”), men were criminalized for consensually eloping with women across state lines. For modern misandristic legal scholarship promoting greater criminalization and incarceration of men, 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 man offering to marry the woman wasn’t sufficient to suspend criminal prosecution of him. The woman’s decision of whether to accept the man’s offer of marriage determined whether the state would suspend criminal prosecution of the man. 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 man convicted of seducing a woman. The law also specifies:
the penalty for abandonment or intolerable cruelty which causes the wife 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-men 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-men 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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