Chloë Kennedy is Senior Lecturer in Criminal Law at the University of Edinburgh. Her main research interests are criminal law, legal theory, legal history and the relationships between these areas. Her work also focuses on law and gender. Chloë is currently writing a genealogy of legal responses to inducing intimacy. This research is funded by an Arts and Humanities Research Council Research Leader Fellowship grant (AH/S013180/1).
Seduction is a slippery concept. Once associated with disloyalty and disobedience, seduction is now more commonly associated with the ‘art’ of persuading another person to have sex. Yet even in this context, seduction can refer to anything from gentle persuasion to substantial manipulation. Partly because of this, attitudes towards seduction are often ambivalent. Practices at one end of the seduction spectrum are considered innocuous, or even valuable, while practices at the other end are considered impermissible and condemned as such. Adding a final layer of complexity, it is not always clear where a particular practice belongs on this spectrum and answers to this question vary across time and place.
In this post, I explore the Scottish delict (i.e. civil wrong) of seduction and look at how, for two centuries, it was used to proscribe certain ways of persuading another person to have sex. Though there is much to say about seduction, in this post I focus solely on the conduct that was prohibited. Based on an examination of ~450 seduction cases, I want to suggest that the action of seduction is best understood as a wrong that involved being untrustworthy in socially and culturally significant ways, which revolved around contemporary understandings of marriage and the abuse of power.
Unfair relationship dealings
Broadly speaking, throughout the period in which seduction actions were brought (which ended in the mid-twentieth century), marriage was the only context within which sex was considered appropriate. It is therefore unsurprising that inducing a woman to have sex by falsely promising marriage was the archetypal seduction case. Importantly, such a promise could be either explicit or implied. In fact, a man could become liable for seduction even if no promise of marriage could be inferred from his conduct; it was enough that his behaviour suggested honourable courtship. This meant a man could commit seduction by giving his sexual partner the (reasonable) impression that marriage was on the cards.
Another way a man could commit seduction was by making his sexual partner believe that they were validly married. This was a feature of seduction law in some United States jurisdictions but, without getting into the intricacies of marriage law, the potential for this form of seduction was especially pronounced in Scotland due to the long survival of irregular forms of marriage. What unites these examples is the fact that a range of practices which breached a shared set of relationship expectations – expectations that centred on the significance of marriage – could constitute seduction. As Melissa Murray has argued with reference to marital promises, the seducer misused the power of marriage by deploying it to serve his own ends.
This talk of misusing power might suggest that seduction required an intention to deceive. Certainly, some legal commentators and judges took this view but others recognised that an intention to deceive was not necessary. As one judge commented, a man might have “drifted, rather than [gone] deliberately into the doing of wrong”. Where there was a clear intention to deceive, because the man promising marriage was already married, this would aggravate the case. But it was the failure to follow through with a promise of marriage, when honouring such a promise was expected, that rendered the conduct wrongful.
Abuse of trust or authority
Towards the end of the nineteenth century a different way of committing seduction came to the fore. Sometimes described as involving ‘ascendency’ – a synonym for power or influence – these cases involved a perceived abuse of trust or authority. The distinctive feature of these cases is that the abuse of power was the sole ground of the seduction action; there was no promise of marriage, deceptive or otherwise, and indeed in some cases there was no deception at all. This development constituted an innovation because prior to this a relationship of trust between parties to a seduction action would at most amount to an aggravation.
Crucially, the last decades of the nineteenth century are notable for various drives to protect women and girls from sexual exploitation. Developments in the law of seduction should therefore be read in that context. In line with this protective impulse, the action of seduction expanded to include situations where a man had sex with a younger teenaged girl. In some of these cases the man told the girl he would do her no harm – a claim that was deemed necessarily false on account of the harm the girl would inevitably suffer – but equally important was the fact that these men were friends of the girls’ families. By abusing the trust they enjoyed these men were considered to have committed a serious wrong; furthermore, their position meant these men stood in a relation of power with their victims. As one judge commented, this dominating influence, which was the foundation of the seduction action, was similar to the power held by a master over his servant, a doctor over his patient, or a pastor over his flock.
As this comparison hints, the other line of ‘ascendency’ cases involved employment relations. Though courtship-style seduction cases involving masters and servants were relatively common throughout the nineteenth century, starting in the 1890s the dependence of a servant on her master became one of the bases on which a seduction action could be brought. After the turn of the century, cases involving other kinds of employment relations were litigated. Importantly, in these and contemporaneous master and servant cases, the unequal position of the parties constituted the main or sole basis of the seduction action. Though my research suggests this line of cases effectively ended in 1919, it is significant for two reasons. The dismay with which these cases were met mirrors many of the difficulties we still face in pinpointing when sex between adults in authority relations is wrong. Yet their existence supports the suggestion that culturally and socially salient expectations of trustworthiness underpinned and gave shape to the legal action of seduction.
Cite this article: Chloë Kennedy, “A Brief History of Seduction”, in: History | Sexuality | Law, 25/03/2021, https://hsl.hypotheses.org/1678, (accessed on: Datum).
 My research focuses on the period c1750 to the present, whereas existing legal and social histories of seduction tend to take the early nineteenth century as their end point. See Leah Leneman, Promises, Promises: Marriage Litigation in Scotland 1698-1830 (2003 NMS Enterprises); Katie Barclay, ‘Emotions, the Law and the Press in Britain: Seduction and Breach of Promise Suits, 1780-1830’ (2016) 39(2) Journal for Eighteenth-Century Studies 267-284; John Blackie, ‘Unity in Diversity: The History of Personality Rights in Scots Law’ in Niall R Whitty and Reinhard Zimmermann, Rights of Personality in Scots Law: A Comparative Perspective (2009 Dundee University Press).
 The idea of trustworthiness I have in mind includes keeping promises (both explicit and implicit) and abstaining from certain communicative practices. Jan Philipp Reemtsma, Trust and Violence (2012 Princeton University Press) 14.
 H W Humble, ‘Seduction as a Crime’ (1921) 21(2) Columbia Law Review 144-154 at 145.
 On the decline of irregular marriage, see Eleanor Gordon, ‘Irregular Marriage: Myth and Reality’ (2013) 47(2) Journal of Social History 507-525.
 Melissa Murray, ‘Marriage as Punishment’ (2012) 112(1) Columbia Law Review 1-65 at 35.
 ‘The Wright Breach of Promise Case’ The Aberdeen Journal 27 July 1888 p7.
 One mid-eighteenth century case involving a male householder and a woman temporarily in his care might constitute an exception to this.
 See, e.g., Lesley A Hall, Sex, Gender and Social Change in Britain Since 1800 (Macmillan Education UK 2012) chapter 2.
 Murry v Fraser (No 2) 1916 1 SLT 300 (Lord Dundas).
 Similar developments to those outlined in this section took place a couple of decades earlier in France. Georges Vigarello, A History of Rape: Sexual Violence in France from the 16th to the 20th Century (2000 Polity Press).
 See Galia Schneebaum, ‘What is Wrong with Sex in Authority Relations? A Study in Law and Social Theory’ (2015) 105(2) The Journal of Criminal Law & Criminology 345-386.