Gender Inequality and Criminal Seduction: Prosecuting Sexual Coercion in the Early-20th Century

Abstract

This artick analyzes narratives of sexual consent and coercion in 15 criminal seduction cases tried in New York City from 1903 to 191 8 . I explore courtroom accounts of seduction to explain how dominant notions of masculinity and femininity constrain the effectiveness of sex crime laws. Unlike men, women in the Progressive era ( I 900-1 920) who engaged in premarital sex faced potentially significant social costs in the form of unwanted pregnancy and ostracism. These women could sometimes seek redress by bringing felony charges against men who reneged on their promises of marriage. New York's "seduction law" not only criminalized betrayal but it also functioned as a tool in the prosecution of sexual assault. Yet a patriarchal ideology of romantic courtship embedded in the statute, and defense attorney strategies that drew on this ideology, limited the law's ability to address sexual coercion.Recent scholarship on the legal treatment of sexual assault has attempted to uncover the asymmetrical power dynamics between men and women that enter the legal arena. Focusing on the relationship between the gender order and legal discourse, this body of research describes how trial testimony articulates gender-based moral evaluations (Conley and O'Barr 1998;Ehrlich 2001; Matoesian 2001; Taslitz 1999). This scholarship shows how different linguistic and discursive tactics create injustice and inequity despite formal features of the legal system designed to promote fairness and equality. Much of this work focuses on contemporary sexual assault trials, leaving the historical roots of sex crime trials, as well as the changing cultural Brian Donovan is an Assistant Professor of Sociology at the University of Kansas. The author wishes to thank

The Shifting Shape of the Rape Discourse

“…He asked her to respond only with a 'yes' or a 'no'. Donovan (2005) refers to such yes/no questions as 'tag questions'. According to him, defence attorneys use this choice of question format to maintain control over cross examination.…”

“…According to him, defence attorneys use this choice of question format to maintain control over cross examination. Tag questions foreclose a resolution of the perceived ambiguities of criminal seduction and acquaintance rape; she loved him but he raped her; he forced her to have intercourse, but there was no great physical struggle (Donovan, 2005, p. 76). The kind of questions that the defence lawyer asked in the cross examination in the aforementioned case clearly show how he tried to establish that the woman was a consenting party because she went willingly to meet the man and did not suffer any injuries or torn clothes.…”

“…He tries to frame consent and refusal as a dichotomised choice, which most often does not represent how things happen in real life. By asking the woman if she had injuries or if her clothes were torn, the defense lawyer tried to show a direct correlation between sexual coercion and physical violence, suggesting that the former cannot occur without the latter (see Donovan, 2005, p. 74). However, it is definitely possible that when a woman consents to meet a man it does not necessarily mean that she consents to sexual intercourse.…”

Narratives of Sexual Consent and Coercion: Forced Prostitution Trials in Progressive-Era New York City

“…The attorney suggested that fiercely resisting rape was the only way a woman in such a situation could preserve her honor. The “resistance test” was an informal standard in seduction prosecutions and a formal standard in rape trials that used the ferocity of the victim's resistance as the measure of her nonconsent (Donovan 2005, 73–78). This fit into a gender ideology that made women's premarital virginity more important than their lives, aligning with the common refrain in the antivice reform literature that rape and forced prostitution were fates worse than death.…”

Culture and Law: Beyond a Paradigm of Cause and Effect

“…For instance, scholars have shown recent interest in how laws related to sexual behavior have been influenced by shifting cultural attitudes about sex. Recent works have attributed cultural influence to rape case outcomes (Donovan 2005), AIDS-related case outcomes (Rollins 2002), and sex-offender legislation (Rollins 2002). For instance, an examination of sex-offender legislation suggests that policy making is by no means motivated by some rational and objective drive to manage sex offenders but is, rather, "located in a constellation of emotional expressions of disgust, fear of contagion, and pollution avoidance, manifested in a legislative concern about boundary vulnerabilities between social spheres of the pure and dangerous" (Lynch 2002, 532).…”