PART XII.

OFFENSES AGAINST CHASTITY, DECENCY AND MO

RALITY.

CHAPTER 49.

SEDUCTION.

§ 1109. Classification of sexual crimes.— While sexual intercourse between a man and a woman who are not married to each other is unlawful it is not in all states made criminal.1 The crimes growing out of sexual relations which are almost universally punishable in the various states are those involv ing some element of aggravation; such as rape, where the act is by force; bigamy, where it is a violation of marital rights; and seduction, where the element of artifice or false promises is involved. There are other crimes of a similar character, where the element of aggravation is the publicity of the act and the resulting tendency to corrupt the public morals or shock the public taste, such as prostitution, lewdness, obscenity and the kindred offense of keeping houses of prostitution. The accompanying table will serve to classify the various crimes of this character with reference to their principal characteristics.

1 Simple fornication is, however, in some states punishable by statute: See supra, § 1086; infra, § 1125.

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§ 1111. What constitutes seduction.- Under a statute in England antedating the settlement of this country, the taking a girl under sixteen years of age out of the possession or custody of her parent or guardian was punishable, with an additional penalty for defiling her, or, without the consent of her parents, contracting marriage with her. But this statute is in the main similar to the earlier statutes which have been the basis of the statutes in the United States relating to the abduction of girls. Aside from this there is no basis in the common law or in the English statutes which form a part of the common law for us, for the offense of seduction as defined by the various state statutes. In South Carolina the English statute is declared to be in force. In general, as defined by the state statutes, the offense consists in seducing and debauching an unmarried female of previously chaste character. To seduce means to corrupt or draw aside from the path of virtue, while debauching implies carnal knowledge.3

§ 1112. Seductive arts; promise of marriage.- Where the statute does not specially define the means which shall be sufcient to constitute the crime there must be some artifice, promise, flattery or the like, by means of which the intercourse is secured, in order to constitute a seduction. There must be something more than the mere appeal to lust, passion or cupidity. But the exact manner or kind of seductive arts cannot be defined; every case must depend upon its own peculiar circumstances, together with the conditions in life, advantages, age and intelligence of the parties. So where it appeared that prosecutrix was of tender years and under the protection of

14 & 5 Phil. & M., ch. 8 (1557). 2 Supra, § 1100.

C. v. Cook, 12 Met. 93; P. v. Roderigas, 49 Cal. 9; Anderson v. C., 5 Rand. 627: S. v. Sullivan, 85 N. C. 506; Rex v. Marriot, 4 Mod. 144.

'S. v. Findlay, 2 Bay, 418; s. c., S. v. Findley, 1 Brev. 107. The fourth section of the English act which was applied in this case is not limited in application to a female possessing lands or goods, or an heiress or heiress apparent: Ibid.

S. v. Reeves, 97 Mo. 668, 8 Am. Cr. R. 698, and note; Wood v. Mathews,

47 Ia. 409; Putman v. S., 29 Tex. Ap. 454.

6 S. v. Crawford, 34 Ia. 40; S. v. Bollerman, 92 Ia. 460, 61 N. W. R. 183.

7S. v. Fitzgerald, 63 Ia. 268; Putman v. S., 29 Tex. Ap. 454.

8 S. v. Higdon, 32 Ia. 262. But in a particular case held that allegations in the indictment as to representations that the act was innocent with promise of presents, etc., were sufficient: S. v. Fitzgerald, 63 Ia. 268. And see S. v. Carter, 8 Wash. 272.

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defendant, it was held that the circumstances themselves would tend to make out a case of seduction. A promise of marriage is sufficient to constitute the element of enticement and false promise essential to the crime. By some statutes promise of marriage is alone mentioned as the means; but even where there is a promise of marriage, intercourse must have been brought about by means thereof and the influence thereby obtained, and not by a mere appeal to the passions; in other words, there must have been the element of seduction. It is not material how long a time has elapsed after the promise of marriage before the intercourse if such promise was relied upon by the prosecutrix. Even a conditional promise to marry, dependent upon the ability of the parties to support themselves, or upon permission to have intercourse,' or in case of pregnancy, has been held sufficient. Nor is it necessary that the prosecutrix shall have accepted the promise of marriage, and entered into a reciprocal promise, as that fact may be inferred from her consent to the act. It is not necessary that the promise of marriage be one binding upon the proposer,10 or that the promise shall have been made in good faith; "1 for instance, though the promiser is already a married man he may be guilty of seduction under promise of marriage.12 But if the prosecutrix knew that the defendant was married at the 1 Lybarger v. S., 2 Wash. 552.

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2 S. v. Heatherton, 60 Ia. 175; S. v. Reeves, 97 Mo. 668; Boyce v. P.. 55 N. Y. 644; Wilson v. S., 58 Ga. 328; Putman v. S., 29 Tex. Ap. 454.

3 S. v. Primm, 98 Mo. 368; S. v. Ferguson, 107 N. C. 841; Putman v. S., 29 Tex. Ap. 454.

4 S. v. Reeves, 97 Mo. 668; O'Neill v. S., 85 Ga. 383; Putman v. S., 29 Tex. Ap. 454. But in an earlier Georgia case, it was said that to establish sexual intercourse with a virtuous woman pending an engagement of marriage might be seduction, though consent was obtained without other persuasion than that implied in proposing the intercourse and repeating the promise: Wilson v. S., 58 Ga. 328. And to the same effect, see S. v. Eckler, 106 Mo. 585.

Armstrong v. P., 70 N. Y. 38. Nor is it necessary that the promise be renewed at the time of the act (S. v. Brassfield, 81 Mo. 151), though such repetition may imply persuasion: McTyier v. S., 91 Ga. 254.

6 Armstrong v. P., 70 N. Y. 38.

7 Boyce v. P., 55 N. Y. 644; S. v. Thornton, 108 Mo. 640.

8 P. v. Van Alstyne, 144 N. Y.361;S. v. Cochran, 10 Wash. 562.

9 Kenyon v. P., 26 N. Y. 203; S. v. Eckler, 106 Mo. 585.

10 Callahan v. S., 63 Ind. 198.

11 P. v. Samonset, 97 Cal. 448; S. v. Prizer, 49 Ia. 531. Even if the promise is made directly for the purpose of securing intercourse, it may be sufficient: S. v. Knutson, 91 Ia. 549. 12 S. v. Bryan, 34 Kan. 63.

time of the intercourse, such knowledge would of course show that the promise was not relied on, and therefore that there was no seduction. So while the fact that defendant was already engaged to be married to another will not prevent the prosecutrix relying upon his promise of marriage to her as constituting seduction, yet such fact may have a bearing on the question as to whether she yielded her virtue on account of the promise.2

§ 1113. Prosecutrix unmarried and chaste.-Even without express statutory provision the crime can only be committed as to an unmarried female of previously chaste character, the term "seduction" implying as much; and the fact that prosecutrix was unmarried at the time of the alleged seduction must be shown. Most statutes specifically define the offense, however, as committed only with a woman who is unmarried and chaste, and under such statutes the chastity of the female must appear. But it is the fact of chastity, and not defendant's belief with reference thereto, that is material. If prosecutrix was, in fact, unchaste, his belief that she was chaste would not justify a conviction. As to what constitutes chastity the courts are not entirely agreed. It has been held that, as a legal definition, an unmarried woman is chaste if she has never had sexual intercourse with a man, and that it is not for the jury to determine that she is unchaste otherwise than by this test. But other courts hold that by the term "chaste" something more is meant than that the woman has not had illicit intercourse,

1 Norton v. S., 72 Miss. 128; Wood v. S., 48 Ga. 192. So if the false promise was extraordinary, and such as the defendant was known to be incapable of performing, that fact should be considered in determining whether the prosecutrix relied thereon: S. v. Groome, 10 Ia. 308. 2 S. v. Brown, 86 Ia. 121.

3 Norton v. S., 72 Miss. 128. And see infra, § 1118. Thus, previous chastity is essential without express provision: P. v. Brewer, 27 Mich. 134; Ferguson v. S., 71 Miss. 805.

4 S. v. Wheeler, 108 Mo. 658; P. V. Krusick, 93 Cal. 74; S. v. Carr, 60 Ia. 453.

5 Norton v. S., 72 Miss. 128; Brock v. S., 95 Ga. 474; S. v. Patterson, 88 Mo. 88; Polk v. S., 40 Ark. 482; Luckie v. S., 33 Tex. Ap. 562. Previously chaste character is not essential in a civil action by a parent for seduction of his minor daughter: Updegraff v. Bennett, 8 Ia. 72.

6 Larker v. C., 90 Va. 820.

7 O'Neill v. S., 85 Ga. 383; S. v. Crowell, 116 N. C. 1052. An instruction that lewd and immodest acts and deportment would show want of chastity was held unnecessary: P. v. Samonset, 97 Cal. 448.