Sexual assault occurs when there is no consent to sex – but did you know sex with a consenting woman was once a crime, if a man used ‘seduction’!
Seduction was defined as a man inducing an unmarried woman of previously “chaste” character to engage in sexual intercourse upon a promise of marriage.
The offence existed in English common law for hundreds of years; making its way into Australia together with colonisation. Common law is that made by the courts – not legislated by Parliament. In the years following settlement, hundreds of cases of seduction were brought against men who had allegedly seduced women with the promise of tying the knot.
Not even famous stars were immune – Frank Sinatra – aka ‘old blue eyes’ – was charged with seduction in 1938.
Seduction in New South Wales
In early colonial times, trials for seduction could be gruelling and humiliating affairs – often involving the exposure of intimate details of sexual interactions. Evidence of a promise to marry would frequently come in the form of love letters, which would be read out in open court for all to hear.
Seduction was also a civil offence, and would come in the form of an ‘action of trespass’. The action would often be brought by the young woman’s guardians or parents, who sued the alleged seducer for damages caused by the woman becoming “unchaste” – no longer being able to marry and be taken care of.
Whether the action was criminal or civil, the seducer would normally be required to pay weekly maintenance, similar to spousal maintenance in modern family law.
Defences to Seduction
There were ways to defend a charge of seduction; one of which was simply to marry the woman. Even if the court already found a man guilty, he could get out of paying any damages or a fine in this way – although some might argue the marriage was a form of punishment in itself!
A second defence was to show that the woman was not chaste; which meant proving she had engaged in sex with others before. Thirdly, a man was not guilty if the prosecution failed to establish that he promised to marry.
Stewart v Duggan
One of the most famous cases of seduction was Stewart v Duggan . Ms Stewart was a young domestic servant living near Newcastle. She met and fell for Mr Duggan, who was an engine driver and considered to be of lower social status.
Mr Duggan enjoyed going to the races. On one particularly lucky day, he won a small fortune – £25,000, and promised to marry Ms Stewart. They slept together and he maintained his promise.
But when he later abandoned Ms Stewart, she brought an action for seduction. Now that Mr Duggan was rich, the jury found him liable to pay both maintenance and £1,000 in damages – about £89,840 or AUD $187, 265 in today’s money.
Mr Duggan later tried to have this verdict overturned, but was unsuccessful.
The Seduction Punishment Bill
The Seduction Punishment Bill 1887 (NSW) proposed to cement the crime of seduction into legislation. The Bill sought to impose a maximum penalty of two years imprisonment upon any man who seduces a previously chaste female aged 14 to 18, or an incapacitated female of any age.
Sir Henry Parkes, one of our ‘founding fathers’, was asked to champion the Bill – a somewhat odd request since he had several illegitimate children to various women himself.
A staunch supporter of the bill was Jams S Farnell, who stated:
“Woman as a rule were chaste, and very few went wrong unless they were placed in peculiar circumstances or were deluded by some unprincipled vagabond. The crime of seduction was almost equal to that of murder.”
However, the Bill was not ultimately passed into legislation. Today, of course, there is no crime seduction. Instead, a crucial element in sexual assault charges is lack of consent, or lack of capacity to consent.
The offence of seduction is an interesting look into past attitudes – and how much things have changed.