Courted and Abandoned: Seduction in Canadian Law, and: Incorrigible (review)

These two rather different volumes examine the connections among codes of sexual conduct, gender relations, and the law - civil and criminal. Patrick Brode's Courted and Abandoned is principally an academic study of seduction, as both a tort and, from the later nineteenth century, the name also given to a particular criminal offence. The early chapters concentrate on the development of the civil law of seduction and the patterns of litigation, largely in nineteenth-century Ontario. In its medieval origins, and as introduced to Upper Canada as part of the English common law, a seduction suit was an action that could be taken by a father against the man who impregnated his unmarried daughter, with damages payable for loss of services - the daughter's contribution to the household economy. Behind this formal notion of loss of services, however, the tort functioned effectively to make the father responsible for providing some support for his child born out of wedlock. In Upper Canada the requirement to prove loss of services was abolished by the 1834 Seduction Act.

In the early chapters Brode does a good job of taking us through the intricacies of the law and of establishing that seduction was a tort quite frequently resorted to. He is able to use the cases to throw considerable light on nineteenth-century courtship rituals and ideas about pre-marital sex - the latter was more accepted than one might think. He also demonstrates shifts in the level of that acceptance and a consistent difference in attitude between the middle and upper classes, often urban-based, and the subsistence farming communities of rural Ontario. And he usefully charts, as has Constance Backhouse before him, the actions of an activist judiciary, which sought to nullify the legislative intent behind the 1834 Seduction Act. That nullification is but one aspect of a consistent theme in this section of the book - the conflicts between judges and juries, which in turn reflected differing attitudes to courtship and the gendered division of responsibility for children born out of wedlock.

Later chapters offer a more varied fare. One takes us through the process whereby seduction became a criminal offence in the late nineteenth century, one aspect of the wave of legislation associated with the social purity movement. From 1886 a man could be prosecuted for seducing a girl under sixteen who was 'of previously chaste character,' and in the following years the scope of this original seduction provision was widened. Few prosecutions ensued, in contrast to the continued prevalence of civil suits. Two chapters deal with other 'heartbalm torts' related to seduction - the action for breach of promise of marriage (actually a contract claim) and criminal conversation, an action that could be brought by a man against an adulterer. And two further chapters look at the west, with one devoted to a single seduction case brought against Alberta premier John Brownlee in 1933. These later chapters are a bit of a pot pourri, but they contain a good deal of useful original material by moving outside of Ontario and away from seduction per se.

Brode's study has many virtues, as noted. But it also has some contentious and unnecessary comments on the relations between law, gender relations, and sexuality, manifest in two particular aspects of his analysis. First, in a number of places in the chapters on the tort of seduction Brode suggests that the women were often scheming opportunists who exploited men for the damages. Seduction, he tells us, 'offered women several distinct advantages,' and 'cases could be brought on the most tenuous of evidence.' Yet the evidence he presents is generally at odds with this, even while he is persuasive in the argument that women were often willing partners in extra-marital sex. There may well have been some such woman, pregnant and willing to point the finger at someone in the hope of obtaining...