Courted and Abandoned: Seduction in Canadian Law (review)

Courted and Abandoned is a study of 'the law's reaction to the persuasive arts,' 'not a history of illegitimacy, sexual offenses or women.' This distinction is misplaced, however; illicit sex often led to illegitimate pregnancy, assault is a violent form of 'persuasion,' and women suffered a greater social price for such affairs than did men. Seduction suits, the central subject of this book, originated in the medieval notion that a father could sue a man who damaged his property - his daughter - when she became pregnant and therefore unable to work. Even when seduction was criminalized, the intent of the law was not to eliminate the status of women as male property, to protect women from violence, or to provide support for the children born of illicit encounters. Brode's assertion that the heart-balm suits provided a 'formidable addition to the female arsenal,' equalizing the power between the sexes, is, in a generous interpretation, dangerously optimistic.

Brode admits 'technically it was irrelevant whether or not the seduced person was pure ... but the character of the victim inevitably became a factor in the award of damages.' Yet, simultaneously, he asserts that 'shallow opportunism' characterized most seduction suits. The argument that women had financial inducement for false accusations seems far-fetched, as few awards equaled the long-term cost of raising a child. As Brode admits, moreover, the awards in such cases did not go to the mother directly, but to her father or guardian. It seems contradictory to assert that a law that applied 'only to women of chaste character,' and that required collaboration of the woman's story, would equalize the power of men and women in courtship. Similarly, his discussion of the use of force to 'persuade' young women is deeply flawed. He asserts that to 'reclaim respectability an unwed pregnant woman would frequently allege that she had been raped by the defendant.' He admits that the 'legal distinction between rape and seduction remained unresolved,' but he seems to assume that he is capable of making this distinction retroactively. Although he sees seduction cases as providing an opportunity for women to exploit men, Brode admits the failure of seduction 'to extract support from putative fathers.' With misplaced optimism, he asserts that this failure led directly and inevitably to state systems of enforcement of paternal support. Brode asserts that new state remedies 'promised reliable, on-going relief.' Primary evidence to support this assertion, however, is completely absent, and the ongoing poverty of single mothers belies such facile arguments.

The heart-balm suits are a subject worthy of extended study, but this book does not provide a definitive or balanced history of seduction or breach of promise. The limitations of Brode's argument are most evident in his conclusions. He warns that attempts to limit men's ability to 'persuade' women to enter into sexual relations are puritanical and echo the history of seduction law. He concludes by asking, 'Has the circle turned to the extent that every sexual approach, even a persuasive one rather than a coercive one, has become a criminal act in the character of rape? Ultimately, is it absurd to assume that there can never be implied consent in the complex dance of seduction?' Seduction trials were not about implied consent or about consent at all. Women, as property, were not considered to have the capacity to consent for themselves. Repeal of the seduction laws acknowledged women's right and capacity to consent to sexual activity; reform of sexual assault laws is about our right to refuse sexual activity and to have such refusal respected. The collapsing of the differences between rape and seduction is inappropriate, even offensive, and reflects the approach of the book as a whole. Sexual misadventures are described only from the perspective of the male participant; the so-called persuasive touch, for example, could, from...