Seduction, sexual violence, and marriage in New York City, 1886-1955

Law and History Review

Volumn 24, Issue 2, 2006, Pages 331-370

  Robertson, Stephen ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 32244445355     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0738248000003357     Document Type: Review

References (101)

1. Susan Estrich, Real Rape: How the Legal System Victimizes Women Who Say No (Cambridge: Harvard University Press, 1987). Estrich offers the best discussion of appellate court decisions on rape
2. Laws of New York, 1886, chap. 663, 953
3. Nathan Feinsinger, "Legislative Attack on 'Heart Balm,'" Michigan Law Review 33.7 (May 1935): 988, n. 58. Those laws were still in place in 1951. The thirteen states without seduction laws were Delaware, Florida, Idaho, Kansas, Louisiana, Maine, Maryland, Nevada, New Hampshire, Tennessee, Utah, Vermont, and West Virginia
4. See Robert Bensing, "A Comparative Study of American Sex Statutes," Journal of Criminal Law, Criminology, and Police Science 42 (1951): 66-67
5. In 1967, Walter Wadlington found seduction laws in thirty-seven states, as well as the Canal Zone, Guam, Puerto Rico, and the Virgin Islands. See Walter Wadlington, "Shotgun Marriage by Operation of Law," Georgia Law Review 1 (1967): 193
6. Stephen Robertson, "Making Right a Girl's Ruin: Working-Class Legal Cultures and Forced Marriage in New York City, 1890-1950," Journal of American Studies 36.2 (2002): 207-9
7. Kathy Peiss, Cheap Amusements: Working Women and Leisure in Turn-of-the-Century New York (Philadelphia: Temple University Press, 1986)
8. For a particularly powerful account of the male aggression suffered by women, see Elizabeth Lunbeck, The Psychiatric Persuasion: Knowledge, Gender, and Power in Modern America (Princeton: Princeton University Press, 1994), 209-28
9. Ellen Rothman, Hands and Hearts: A History of Courtship in America (New York: Basic Books, 1984)
10. Karen Lystra, Searching the Heart: Women, Men, and Romantic Love in Nineteenth-Century America (New York: Oxford University Press, 1989)
11. John D'Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in America, 2d ed. (Chicago: University of Chicago Press, 1997), 73-78
12. See D'Emilio and Freedman, Intimate Matters, 184-86
13. Caroline Ware, Greenwich Village, 1920-1930 (New York: Harper, 1935), 181-82, 184, 405
14. Virginia Yans-McLaughlin, Family and Community: Italian Immigrants in Buffalo, 1880-1930 (Urbana: University of Illinois Press, 1971), 95
15. Beverly Schwartzberg, "'Lots of Them Did That': Desertion, Bigamy, and Marital Fluidity in Late-Nineteenth-Century America," Journal of Social History 37.3 (2004): 572-73, 592
16. Hendrik Hartog, Man and Wife in America (Cambridge: Harvard University Press, 2000), 28, 30, 284
17. For a discussion of this point, see Estrich, Real Rape, 49-50
18. Jill Hasday, "Contest and Consent: A Legal History of Martial Rape," California Law Review 88 (October 2000): 1373-505
19. Elaine Tyler May, Great Expectations: Marriage and Divorce in Post-Victorian America (Chicago: University of Chicago Press, 1980), 104-8
20. See Stephen Robertson, Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880-1960 (Chapel Hill: University of North Carolina Press, 2005), chap. 9
21. See Robertson, Crimes against Children, chap. 1
22. Marilynn Wood Hill, Their Sisters' Keepers: Prostitution in New York City, 1830-1870 (Berkeley: University of California Press, 1993), 140-44
23. Barbara Berg, The Remembered Gate: Origins of American Feminism. The Woman and the City, 1800-1860 (New York: Oxford University Press, 1978), 209-12
24. Carroll Smith-Rosenberg, "Beauty, the Beast, and the Militant Woman: A Case Study in Sex Roles and Social Stress in Jacksonian America," in Disorderly Conduct: Visions of Gender in Victorian America (New York: Oxford University Press, 1985), 110
25. First Annual Report of the Female Moral Reform Society of the City of New York, Presented, May 1835, excerpted at http://womhist.binghampton.edu/fmrs/ doc1.htm (4 October 2002)
26. For moral reform, see Berg, Remembered Gate
27. Mary Ryan, Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (New York: Cambridge University Press, 1981), 116-26
28. Smith-Rosenberg, "Beauty"
29. Barbara Hobson, Uneasy Virtue: The Politics of Prostitution and the American Reform Tradition (New York: Basic Books, 1987), 49-76
30. Pamela Haag, Consent: Sexual Rights and the Transformation of American Liberalism (Ithaca: Cornell University Press, 1999), 3-24
31. and Daniel Wright and Kathryn Kish Sklar, "What Was the Appeal of Moral Reform to Antebellum Northern Women?" http://womhist.binghamton.edu/ fmrs/intro.htm (4 October 2002)
32. For the campaign for the seduction law, see Hill, Their Sisters' Keepers, 140-44
33. Laws of New York, 1848, chap. 111
34. See Penal Code of the State of New York, title X, sec., 284, in Laws of New York, 1881, vol. 3, chap. 676
35. Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins University Press, 2002), 228
36. Hobson, Uneasy Virtue, 31, 51
37. Cornelia Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1995), 12-13, 208, 215, 227, 305-7, 327
38. Godbeer, Sexual Revolution, 255
39. Robertson, "Making Right," 215
40. Dayton, Women Before the Bar, 188-207
41. Linda Gordon and Ellen DuBois, "Seeking Ecstacy on the Battlefield: Danger and Pleasure in Nineteenth-Century Feminist Sexual Thought," Feminist Review 13 (1983): 50
42. For discussion of the argument that it was impossible for a healthy adult woman to be raped, see Stephen Robertson, "Signs, Marks, and Private Parts: Doctors, Legal Discourses, and Evidence of Rape in the United States, 1823-1930," Journal of the History of Sexuality 8 (January 1998): 350-63
43. Haag, Consent, 3
44. See also Lea VanderVelde, "The Legal Ways of Seduction," Stanford Law Review 48 (April 1996): 862-64
45. M. B. W. Sinclair, "Seduction and the Myth of the Ideal Woman," Law and Inequality 5 (1987): 35-47
46. Vander Velde, "Legal Ways," 867-83
47. The best account of the breach of promise tort in the American context is Michael Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 34-44
48. Sinclair, "Seduction," 46
49. and Jane Larson, "'Women Understand So Little, They Call My Good Nature "Deceit"': A Feminist Rethinking of Seduction," Columbia Law Review 93 (1993): 385-87
50. Grossberg, Governing the Hearth, 34-38
51. "The Importance of Petitions," Letter from N. H. of Westmoreland, New York, October 26, 1838, Advocate of Moral Reform, 15 November 1838, 174-75 http://womhist.binghampton.edu/fmrs/doc19.htm (4 October 2002)
52. Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: University of Toronto Press, 1991), 80
53. Wadlington found provisions for marriage as a defense in thirty-four of the forty-one state seduction laws. See Wadlington, "Shotgun," 193
54. People ex rel. Scharff v. Frost, 135 A.D 473
55. 120 N.Y.S. 491 (1909)
56. Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800-1880 (Chapel Hill: University of North Carolina Press, 1989)
57. Lawrence Friedman, Crime and Punishment in American History (New York: Basic Books, 1993)
58. For the change to the seduction statute, see Penal Code of the State of New York, Title X, sec. 284, in Laws of New York, 1881, vol. 3, chap. 676
59. Backhouse, Petticoats and Prejudice, 61
60. Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880-1929 (Chicago: University of Chicago Press, 1993), 80
61. Hartog, Man and Wife, 285
62. People v. Duryea, 30 N. Y. S. 877 (1894)
63. People v. Van Alstyne, 144 N. Y. 361 (1894). Prior to People v. Van Alstyne some confusion had existed as to what constituted a conditional promise. The decisions cited to support the argument that the law applied to conditional promises dealt with cases in which the promise was that "the accused would marry the prosecutrix if she would consent to have connection with him."
64. See Kenyon v. People, 26 N.Y. 203
65. and Boyce v. People, 55 N. Y. 644. As the decision in People v. Duryea put it, in reasoning approved by the Court of Appeals in People v. Van Alstyne, "In the case of a promise conditional upon immediate intercourse, the condition is performed at the moment of the sexual act, and the promise to marry becomes absolute at once. Seduction in such a case is clearly accomplished under a promise to marry."
66. People v. Van Alstyne, 29 N. Y. S. 543 (1894)
67. People v. Van Alstyne, 144 N. Y. 363 (1894)
68. People v. Van Alstyne, 29 N. Y. S. 544 (1894)
69. For another example of a case in which the nature of the promise is difficult to establish, see People v. Ryan, 71 N. Y. S. 527, 63 App. Div. 429 (1901)
70. Robertson, "Signs, Marks and Private Parts," 350-63
71. Women described being subject to physical force in 39 percent (N=31) of the files that contain details of the circumstances of the case, or 24 percent (N=51) of my total sample of seduction cases. The only other study of criminal seduction cases, Karen Dubinsky's work on Ontario, found that 20 percent of the cases involved violence. However, the Canadian law applied only to promises of marriage made to females under twenty-one years of age, and also encompassed sexual intercourse with girls aged between fourteen and sixteen years, and sexual intercourse with a female ward or employee under twenty-one years of age. As a result, Dubinsky's figures do not provide the basis for a comparison. See Dubinksy, Improper Advances, 66-79
72. Mary Roberts Smith, "The Social Aspect of New York Police Courts," The American Journal of Sociology 5.2 (September, 1899): 145-46
73. On the conditions in Magistrates' Courts, see also Eric Fishman, "New York's Criminal Justice System, 1895-1932" (Ph.D. thesis, Columbia University, 1980), 68-69. The Police Courts were renamed Magistrates' Courts in 1910
74. Joseph Morgenstern to J. Perkins, January 3, 1907, in DACCF 57810 (1906)
75. People v. Kingsley, 166 App. Div. 322 (1915)
76. For the case involving a man's attentions, see People v. Gumaer 30 N. Y. S. 17, 80 Hun, 78 (1894)
77. People ex rel. Scharff v. Frost, 198 N.Y. 110
78. 91 N.E. 376 (1910)
79. In regard to the civil action for breach of promise, Martha Coombs has claimed "a woman determined to bring a suit was no longer concerned primarily with the loss of opportunity to marry the defendant." Her claim, which is unsubstantiated, may apply better to women who turned to the civil law rather than the criminal law, but it appears to be an assumption. See Mary Coombs, "Agency and Partnership: A Study of Breach of Promise Plaintiffs," Yale Journal of Law and Feminism 2 (1989): 10
80. Addams argued that, "Even the sordid marriages in which the senses have forestalled the heart almost always end in some form of family affection. The young couple who may have been brought together in marriage upon the most primitive plane, after twenty years of hard work in meager, unlovely surroundings, in spite of stupidity and many mistakes, in the face of failure and even wrong-doing, will have unfolded lives of unassuming affection and family devotion to a group of children." See Jane Addams, A New Conscience and an Old Evil (New York: Macmillan, 1912), 203
81. Mary Frances Berry, The Pig Farmer's Daughter and Other Tales of American Justice (New York: Knopf, 1999), 131-32
82. St. Clare Drake and Horace Clayton, Black Metropolis: A Study of Negro Life in a Northern City (New York: Harcourt, Brace, 1945), 592, 594
83. See also Enid Smith, A Study of Twenty-Five Adolescent Unmarried Mothers in New York City (New York, 1935)
84. and the studies discussed in Donna Franklin, Ensuring Inequality: The Structural Transformation of the African-American Family (New York: Oxford University Press, 1997), 132-36
85. Rothman, Hands and Hearts
86. Lystra, Searching the Heart
87. See Schwartzberg, "Lots of Them.'"
88. Larson, "'Women Understand So Little,'" 395, n. 88
89. John Creegan to Foreman, Grand Jury, 31 July 1936, in DACCF 210716 (1936)
90. Joanne Meyerowitz, "Sexual Geography and Gender Economy: The Furnished Room Districts of Chicago, 1890-1930," Gender and History 2.3 (Autumn 1990): 285-88
91. Coombs, "Agency and Partnership."
92. Robertson, "Making Right," 210
93. Robert Lynd and Helen Lynd, Middletown: A Study in Modern American Culture (1929; New York: Harcourt, Brace, Jovanovich, 1956), 114, 241
94. Frazier noted that African American girls also read, and were influenced by, those magazines; see E. Franklin Frazier, The Negro Family in the United States, revised and abridged (Chicago: University of Chicago Press, 1948), 264
95. As early as the 1920s, social workers had begun complaining that marriages orchestrated by the courts only led to more social problems. See Arthur Towne, "Young Girl Marriages in Criminal and Juvenile Courts," Journal of Social Hygiene 8 (July 1922): 287-305
96. and Robertson "Making Right," 218
97. For the emergence of illegitimacy as a problem that concerned Progressive reformers, and their decision to address that problem through a focus on paternity and maintenance, see Susan Tifflin, In Whose Best Interest? Child Welfare Reform in the Progressive Era (Westport: Greenwood, 1982), 166-86
98. For the New York law, which was added to the Domestic Relations law, see Laws of New York, 1925, chap. 255, 508-14
99. For a discussion of paternity proceedings in the late 1940s and early 1950s, see Association of the Bar of the City of New York and Walter Gellhorn, Children and Families in the Courts of New York City (New York: Dodd, Mead, 1954), 192-216
100. and Sidney Schatkin, Disputed Paternity Proceedings, 3d ed. (New York: M. Bender, 1953), 357-89
101. See James Gilbert, Cycle of Outrage: America's Reaction to the Juvenile Delinquent in the 1950s (New York: Oxford University Press, 1986), 18-19