Wednesday, April 29, 2009

Vandervelde on The Legal Ways of Seduction

The Legal Ways of Seduction has just been posted on SSRN by Lea S. VanderVelde, University of Iowa College of Law. It appeared in the Stanford Law Review (1995-1996). Here's the abstract:
Rape, coerced sex, and abandonment when pregnant are quintessentially gendered grievances that generations of young women have experienced. The law, however, has not always responded to these grievances by providing a tradition by which women could receive monetary damages for these kinds of sexual predation. This article situates the nineteenth century American seduction cases at the cusp of the transition from violent retributive sanctions for sexual assault to civil actions for money damages. The seduction cases tell the story of the move from patriarchal violence to "rationally" created rules of law. In the nineteenth century, courts provided fathers with a cause of action when their daughters were subjected to sexual coercion while they worked outside the confines of their father's home. As the state assumed more of a monopoly on violence in these situations, it replaced the traditional domination exercised by the patriarch by copying its distributional pattern rather than by recognizing new rights in the parties most harmed. The extension of rights under this ancient tort was, in fact, antithetical to single women's independence because it reinforced the patriarchal order and defeated acts of emancipation on the woman's part. In a study of more than two hundred cases, Professor VanderVelde first makes the case that there was no tradition of monetary redress for one of a woman's greatest fears, sexual assault. The article demonstrates the doctrines and cultural precepts which inhibited the development of an action that the woman herself could bring. Second, the article examines the terms on which the tort of seduction operated. Finally, the article demonstrates how a minor change in standing adopted virtually without notice changed the cast of seduction disputes in some states. Through this means in some eleven states, servant girls at last were able to sue masters who coerced them into engaging in sex.