Setting the Scene: Sexual Trials in Illinois Courthouses

Seduction, breach of promise of marriage, and bastardy litigation had legal histories that long preceded their use during the nineteenth century. Beginning in the middle decades of that era, however, procedural developments radically altered the social functions of the proceedings. Seduction litigation, once focused on compensation for tangible injuries, increasingly turned on what might be called “injuries to the mind.” The gravamen of the action now centered on the internal distress seduction brought to the household of the seduced woman, including its effects on the family's standing within the community.Footnote ¹⁷ Breach of promise suits moved along a similar trajectory, increasingly taking into account the mental anguish and suffering a spurned lover felt as well as the reputational damage she was likely to experience. Breach suits also began to allot additional compensation to female plaintiffs who could prove they had been jilted and seduced.Footnote ¹⁸ While seduction and breach of promise proceedings took on more punitive functions, bastardy litigation took on a substantially less castigatory one, at least for the women involved in these suits. A hybrid of civil and criminal law, bastardy retained some of its compulsory role (men who failed to comply with rulings could face property injunctions or imprisonment), but now ranked no higher than a misdemeanor.Footnote ¹⁹ In other ways, bastardy developed more similarity to seduction litigation. In case after case litigated during the second half of the century, plaintiff lawyers framed their arguments around a seduction motif. They referred to their clients as “vulnerable,” and “helpless,” and used words such as “treacherous,” “villainous,” and “black-hearted” to vilify the actions of defendants, actions plaintiff lawyers ultimately labeled as “seduction.”Footnote ²⁰ The clearest signifier of how closely related these civil actions were, however, concerns the tendency of young women to treat former lovers to all three types of litigation.Footnote ²¹

The engine of litigation was ultimately fueled by both internal legal changes and social transformations and cultural pressures. Greater mobility—especially for men—and less static, cohesive communities had rendered single women and girls more vulnerable to male sexual coercion and abandonment. At the same time, procedural developments broadened access to the proceedings that might respond to and regulate out-of-wedlock sexuality. They also expanded the possible damages awarded in such suits, rendering them all the more attractive.

As more young women and their kin thronged court dockets, the wider public was, in turn, exposed to and captivated by the real-life experiences of “seduction” happening in their midst. With reputational injury as the new gravamen, the actions took on the sentimental, affective language of nineteenth-century domesticity. Judicial opinions made use of flowery figures of speech to condemn acts of seduction. For example, one mid-century judge referred to seduction as a “flagitious outrage upon the peace and happiness of the family circle.” Yet these trials were anything but stilted affairs. This painstaking focus on reputational harm and the attendant inquiry into unseemly sexual encounters it entailed also produced the stuff of melodrama. At once a respectable defense of family honor and a raucous inquiry into the most intimate of affairs, these trials proved quite a seductive combination for the crowds who gathered to watch them unfold.Footnote ²²

Beyond becoming more lucrative and accessible, civil sexual trials were also quite dependable undertakings. Eighty-three percent of the cases appealed to Illinois' Supreme Court during the second half of the nineteenth century awarded for the plaintiff or her family at the county court level, the Supreme Court affirmed the lower courts' decisions in approximately 65% of these suits. Similarly high success rates for women involved in civil sexual trials have been documented by other scholars.Footnote ²³ That these actions were civil accounts, at least in part, for the high numbers of verdicts favorable to plaintiffs. Unlike criminal sexual trials, guilt was proven through “a preponderance of the evidence,” rather than established “beyond reasonable doubt.” These legal outcomes were influenced by the very cultural assumptions that undergirded popular understanding of seduction: that men, not women, instigated acts of intimacy outside the safety of matrimony.Footnote ²⁴

Although civil sexual proceedings underwent various legal modifications in the middle decades of the nineteenth century, they appropriated themes from the literary template of seduction with striking regularity across the period. This is not to suggest some static Victorian popular culture. On the contrary, nineteenth-century civil sexual trials exposed just how malleable the era's notions of sex and sexuality could be. Still, some regular features emerged. Successful litigation established women's sexual vulnerability and men's sexual aggression, the same themes that coursed through seduction literature. One need only look at the number of times nineteenth-century presses republished the most popular late eighteenth-century seduction novels to appreciate the continuities within Victorian sexual culture.Footnote ²⁵ Then again, civil sexual trials also gave rise to other, considerably less conventional sexual themes: meanings that this article is far more invested in uncovering.

In Illinois, young women of both moderate and wealthy means were able to successfully harness and make use of these tropes of female sexual vulnerability and victimization. The ethnicity of female plaintiffs likewise varied widely, with both immigrant and native-born American women enlisting the aid of local legal systems to find solutions to their romantic woes. Still, there were limits to its applications. Few African American or older female plaintiffs (those older than their mid-twenties) appeared in these suits, indicating that legal seduction scripts had particular kinds of fallen heroines in mind (read, white and youthful).Footnote ²⁶

The shift to reputational injury also seems to have influenced the proceeding's cast of characters. Individuals residing in rural environs more consistently turned to litigation when romances went sour than did those living in urban areas. In particular, these parties were more likely to end up in appeals courts than were their urban counterparts. Only 10% of the civil sexual trials appealed to the Illinois Supreme Court came from Illinois' most populated region, Chicago. It may be that greater anonymity within cities offered urban men better occasions to escape courtroom rulings and to avoid expensive appeals processes. Other scholars have also discussed the rural cast of such litigation, suggesting that the reputational nature of such litigation meant that individuals from close-knit communities were more likely to seek out legal aid for any perceived injuries to social standing.Footnote ²⁷

Eroticized public exchanges were ultimately commonplace in Illinois' local legal life, suggesting that experiences there mirrored local legal cultures around the country. Numerous scholars researching diverse areas of the country have noted widespread community attendance at and newspaper coverage of lawsuits considered scandalous. In many ways, Illinois' adjudication of out-of-wedlock and extramarital intimacies on trial were no different. Illinoisans regularly gathered in their local courthouses to listen to kin, friends, and acquaintances air their dirty laundry. Beyond mere scandal, however, Illinois' sexual suits mattered to contemporaries in political as well as social and recreational terms. In the countryside and small towns of Illinois—the types of locales that saw the greatest numbers of civil sexual proceedings—community members experienced their local courtroom both as a familiar social milieu where one might discuss local politics, handle business matters, or catch up on the latest neighborhood gossip, and as the most recognizable face of state power. In a sense, rural law courts functioned as the cultural space in which the day-to-day lives of ordinary Illinoisans, sources of public amusement, and forms of social authority publicly intertwined. The relative paucity of public entertainment venues and the lack of anonymity within rural communities meant that its legal sexual conversations would hold considerable cultural influence, perhaps more so than in the urban environs that have factored so heavily in historical analyses of the period.Footnote ²⁸

Law and Community: Newspaper Coverage of Sexual Trials

Seduction-laced civil proceedings assumed prominent legal and social importance during the second half of the nineteenth century for a number of reasons. For one, the seduction-themed literature that first grew to prominence in late eighteenth-century United States and Britain had helped secure notions about young women's sexual vulnerability a hallowed place within nineteenth-century Americans' psyches. Several infamous cases of seduction or criminal conversation such as the Henry Ward Beecher/Elizabeth Tilton scandal similarly entrenched this phenomenon into nineteenth-century popular culture.Footnote ²⁹ Beyond infiltrating popular culture, contemporary understandings of seduction—inveigling women into sexual encounters through persuasion or other “artifices”—made the retelling of this male art particularly conducive to eroticization, titillation, and prurience. Unlike criminal prosecutions of rape, which required strict standards of female resistance to male violence, seduction prosecutions hinged on female sexual acquiescence.Footnote ³⁰ In other words, seduction assumed female complicity in sexual acts even as it advanced notions about women's unequal bargaining powers in matters of the heart and of passion. These legal proceedings required women to discuss their sexual experiences and they drew out reasons why young women were persuaded to engage in out-of-wedlock sex acts. Because this was an era of rising concern for genteel notions of respectability, female-narrated depictions of sex took on an aura of the forbidden and the illicit. This focus on female sexual motivations thus infused the litigations with much of their titillating cast. At the same time, as Lea Vandervelde has argued, seduction served as an “acceptable outlet for conversations about sex” because of its very prominence in contemporary literature and popular culture.Footnote ³¹

Newspaper coverage of “scandalous” litigation makes evident the immense popularity of civil sexual trials. An examination of the Chicago Tribune from its infancy through the early twentieth century, for example, reveals that the paper's editors regularly covered local and nationally prominent legal actions that dealt with sex outside the bonds of matrimony.Footnote ³² Several local newspapers from a Mississippi River community have also been consulted in order to give a sense of how presses from more rural parts of Illinois handled trials of sexual misconduct.Footnote ³³ Neither the Tribune nor the Quincy papers offered much in the way of specific condemnation of particular parties, likely because of editors' worries about libel charges.Footnote ³⁴ Both papers typically discussed upcoming and ongoing trials in fairly brief accounts, but what these articles lacked in detail, they made up for in sensationalism and eroticism.

Both news stories and legal records themselves reveal that trials of sexual misconduct drew large crowds and elicited considerable public excitement. A correspondent from the Chicago Tribune, for example, began his coverage of an 1866 criminal conversation suit in nearby Kane County with a discussion of courtroom attendees. “The town of Geneva is excited. The large courtroom—fully as large as the circuit court in Chicago—is crowded with bystanders and witnesses,” the reporter observed. Similarly, the arrest of a Methodist minister on charges of seduction and bastardy prompted this comment by the Peoria Transcript. The holy man's misdeeds, the paper noted, had “excited great interest” in the central Illinois region, largely on account of the prominent “standing of the parties.” David Trimble's 1871 arrest for bastardy and abortion likewise created a stir in his sleepy, farming community situated in northwestern Henderson County.Footnote ³⁵ Neighborly curiosity led surrounding residents to gather on the courthouse grounds on the day David's abortion trial was set to begin. The initial litigation, however, proved to be a letdown. David had been busily engaged all morning in settling the bastardy charge against him and in convincing his former sweetheart to refuse to testify at the abortion trial. When these settlements later fell through, the justice of the peace involved in this arbitration meeting testified as to his role in mediating between the parties. As something of an aside, the esquire mentioned the community's regret when they learned the initial hearing for the abortion suit had been cancelled: “A large crowd was collected, waiting to hear the examination in the felony case and they got disappointed.”Footnote ³⁶

The notoriety of civil sexual trials stems from their sensational characteristics. Reporters sought to arrest readers' attention with captions such as “Sad Case of Seduction; Heartless Seduction; Love, Seduction, and Death; Seduction on the Stage: A Pantomimic Libertine; or The History of Shame: Seduction, Despair, and Attempted Murder.” Beyond these sentimentalized titles, reporters also made sure to play up the vulgar nature of courtroom statements. An 1859 article, which covered a Milwaukee seduction suit, is quite representative of the Tribune's coverage of sexual trials. The piece claimed Milwaukeeans were interested in the suit because the testimony given by his young paramour “rivaled in indecency the most successful cases of criminal conversation.”Footnote ³⁷

Small-town newspapers emphasized the amatory aspects of courtroom conversations just as more urban papers did. In January of 1870, for example, the Quincy Whig reported that the local courtroom was “jammed” with “excited” Quincy residents, restless to hear the details of a seduction case indicting a local young man, and ready for swift justice, as evidenced by the invective frequently yelled by the crowd: “Hang him.” Seduction and bastardy proceedings heard in 1893 in the Circuit Court of Adams County prompted a likeminded declaration from the same paper: “The erotic Tommamichael Enghauser case had another ventilation in the circuit court yesterday in the hearing of the case of John P. Tommamichael against John Enghauser.” Yet another Quincy reporter similarly highlighted the ways in which such suits might excite their courtroom audiences: “The dull routine of the law and equity court was enlivened today by a breach of promise suit.”Footnote ³⁸

A number of comments from rural reporters indicated that they wanted to alert their readers to the “sensational” litigation unfolding in their very own backyards. “The people of Warsaw [in the west-central county of Hancock] have had the even tenor of their way disturbed by a sensational seduction suit of elephantine proportions,” a writer from the Quincy Daily announced. What is ultimately different about rural newspaper coverage of sexual trials when compared with those in the Tribune, is that small-town newsmen made self-referential comments about the nature of small-town life. Reporters, in many ways, manipulated assumptions about life in the countryside order to insist that scandals might erupt in the most unlikely of places. When a seduction turned bloody in Plymouth (the alleged seducer shot and killed his former lover's father in the days after the father and daughter had made legal plans), a “special correspondent” opened his account of the events with this provincial observation: “Our little town was considerably aroused and much excited through the day yesterday and all night last night . . .” Reporters sometimes made comparisons between the sexual wrongdoings transpiring in rural and small-town America with those presumably going on in big cities. Their statements suggest that reporters expected their readers to be enthused over—if not proud of—the scandal occurring right under their own noses. “Galesburg [in northwestern Illinois] and its vicinity are becoming as famous for sensations as Chicago itself. Murders, seductions, and suicides have been of frequent occurrence in that vicinity of late,” one writer exclaimed.Footnote ³⁹

Reporters anticipated that if reading about sexual testimony offered pleasure, this would be all the more so when those intimate narratives were recounted by pretty prosecuting witnesses. The popular press's chronic commentary on the comeliness of female litigants suggests that such remarks sold papers. The Tribune's coverage of a sexual suit from Chicago is again typical of such reports. This article made sure to mention when “the young and beautiful” prosecuting witness would give her testimony. Other newspaper accounts also described the victims of sexual “ruin” in terms that referenced their physical appearance—“an innocent-looking and very pretty girl,” “a buxom-looking German girl,” “her bewitching manners and pretty face,” “a young and pretty Jewess,” and “young, beautiful, and accomplished lady.” Although physical descriptions of prosecuting witnesses were generally calculated to engage the reader through brief but to-the-point expressions, sometimes newspapermen offered such lengthy tributes to female plaintiffs' loveliness that even those who had not attended court proceedings might imagine and reflect on their good looks. A Peoria girl's appearance, for example, prompted the following accolade from a Tribune reporter: “She is a remarkably handsome and intelligent girl, with dark brown hair, curly and cut short, hazel eyes, florid complexion, medium height and good figure.” Sex in the courts, then, created community events that were publicly regarded and reported on in ways not so very different from other forms of popular entertainment. Much like the belles of plays, ballets, and other theatre productions, it was generally the leading ladies of legal dramas who so captivated and entranced their courtroom and reading audiences.Footnote ⁴⁰

Press correspondents often directly linked the sympathy a girl might garner in consequence of her seduction to her young age. A Tribune reporter covering an 1871 seduction suit from Quincy, Illinois wrote, “history gives few parallels of such shocking depravity and especially so when we take into consideration that the ladies in question are so young.” An 1874 article similarly drew attention to the youth of an alleged seduction victim from Chicago. The author lamented: “A dastardly and most outrageous case of abduction and seduction, involving the ruin of a young girl—a mere child of fourteen years old—came to the knowledge of a Tribune reporter last evening.” Ultimately, press coverage of out-of-wedlock sexual trials indicates that reporters drew on the popular literary motif of seduction. If youth was an essential component of that victimization script, the physical beauty of prosecuting witnesses rendered that story all the more palatable to courtroom and reading audiences.Footnote ⁴¹

Significantly, local courtrooms attracted both male and female spectators. Women, too, sought out firsthand knowledge of the sexual misconduct occurring in their neighborhoods. The Chicago Tribune reported that an 1866 Indiana murder trial, which indicted a father who had allegedly killed his daughter's seducer, drew a “dense crowd” and that the female “schoolmates of the unfortunate girl” were among those in attendance. An 1887 “sensational divorce case” from Galesburg, Illinois similarly attracted both male and female onlookers, according to newspaper coverage of the proceeding. In addition to detailing the infidelity charges disclosed by witnesses, the newspaperman mentioned that a “considerable portion” of the substantial crowd were women. Another murder trial, this time involving a young and purportedly adulterous wife from Janesville, Wisconsin, gathered a viewing audience so large as to make attendees “uncomfortable.” According to the Tribune news reporter, “fully three hundred ladies” had convened in the courtroom to hear the young wife's lover recount his “criminal intercourse” with the alleged murderess.Footnote ⁴²

Though local women as well as men attended suits specifically adjudicating illicit sex and cases that merely touched on matters of sexuality, women's presence at such trials appears to have been contested. A Tribune journalist's 1888 thought piece on the prevalence of divorce in Illinois not only contended that marriages were too easily sundered in Illinois, he also maintained that the voyeuristic element of such litigation did not contribute to public morality. The reporter was most concerned over the “prurient curiosity of the female mind,” noting that “sympathetic females accompany all the supplicants for divorce, male and female . . . as many female spectators as the courtroom can hold.” The audience makeup at an 1888 trial involving the abduction and “ruin” of a Chicago girl similarly provoked the Tribune correspondent to indicate his unease with women's legal spectatorship. He wrote, “The courtroom was crowded, as a matter of course, and in the audience were many women, who should have been anywhere but there. Much of the testimony was not fit for women to hear; but women will insist on listening to the most disgusting things sometimes.” That reporters often pointed out the sex of courtroom bystanders signifies, on the one hand, contemporaries' anxiety over the idea that women gathered in courts of law to hear the licentious particulars of illicit sexual encounters. Then again, press commentary regarding women who attended scandalous trials also attests to the fact that the audience chambers of Illinois courtrooms frequently included a noticeable female presence.Footnote ⁴³

While the world of print became one means for Americans to satiate a voracious enthusiasm for sensationalized accounts of out-of-wedlock love turned sour, local courtrooms developed into another. Also, the seduction-laced reports of intimacy unveiled in Illinois courthouses were authentic and explicit. Unlike the blow-by-blow descriptions of seduction presented in print, juridically mediated accounts of seduction did not disappoint their audiences just when matters turned particularly salacious. Print versions of out-of-wedlock and extramarital sex typically excised explicit discussions of sexual intercourse and they did so in ways that only incited reader curiosity (“but the particulars must be supplied by the reader's own imagination” or “it is a great pity, we know, and the reader may blame us for it, but we are here reluctantly compelled to drop the curtain”).Footnote ⁴⁴ Sexual litigation, in contrast, was almost guaranteed to dredge up scabrous minutia. In the end, community members may have attended sexual trials because they were genuinely concerned and curious about legal outcomes, but many also flocked to their local courthouse to hear firsthand the naughty tidbits that were certain to accompany such trials. That many of these scandalous facts were related by unmarried young women made sexual testimony all the more illicit.

Legal Voyeurism

Rules of evidence and practices of proof called for candor about the circumstances that brought the parties of a sexual suit to the courtroom. Consequently, court officials required the women bringing such suits to talk about actual sexual experiences. Civil sexual trials presented contemporaries with the opportunity to deliberate whether particular men or women should bear the brunt of responsibility for out-of-wedlock sexual activity, and they also allowed them to publicly debate the very nature of female sexuality. These suits all drew upon notions of feminine sexual passivity and vulnerability framed in opposition to male sexual aggression and licentiousness: a paradigm borrowed from the tales of seduction first outlined in late eighteenth-century novels and broadly disseminated thereafter in popular literature of all genres. At the same time, both cultural and legal understandings of seduction assumed a kind of partial or “half” consent given by women under the spell of ardent male persuasion. Just what the intricacies of this female sexual consent should be was a subject of controversy. The gist of these legal actions, therefore, became twofold: first, to evaluate the types of “artifices” seducers employed to convince their lady loves to surrender their chastity, and second, to assess the degree to which these young women acted as passive sexual partners.

In other words, the success or failure of these civil sexual trials hinged in part on minute considerations of female sexual agency. Once again, the unintended consequences of sexual regulation loom large. Far from acting as a fetter on female sexual expression, the law fixed public attention on the inner workings of female sexual agency by compelling the growing numbers of women who brought these suits to rehash their roles in sexual exchanges. In other words, seduction trials highlighted the very component of female sexuality that the literary genre of seduction had, at least discursively, sought to bury.Footnote ⁴⁵

The flip side of this legal need for detailed sexual accounts was that the legal participants and numerous spectators attending trial would watch women talk about sex. Legal voyeurism operated on another level as well, by inviting legal participants to vicariously fantasize about the lurid descriptions that were so forthcoming. Prosecuting witnesses were routinely asked for details such as the location and time of a sexual encounter, the position they assumed during the sex act, the duration of a particular episode, whether other individuals were nearby, as well as what words and actions preceded an erotic encounter. Attorneys and other judicial officials elicited this graphic information from female litigants because it was widely assumed that these data allowed juries to weed out far-fetched sexual narratives from the more plausible ones. The legal oversight of out-of-wedlock sexuality thus encouraged spectators to visualize the intimate act(s) disclosed and demanded vicarious acts of imagination from jury members. In other words, local courts authorized their audiences to adopt voyeurism as a truth-finding technique. Those legal participants who did so might rest assured that illicit sex on trial called for nothing less.

Beyond these institutional and procedural demands, currents within popular culture similarly worked to camouflage the public's voyeuristic interest in female litigants' sexual storytelling as a legitimate enterprise. It was ultimately a particular kind of sexual experience that prosecuting witnesses related to their courtroom audiences—universalized stories of heartless seduction. The messages embedded within their legal narratives were innocence lost and womanhood betrayed, the culprits, malevolent men, the solutions, the damage settlements awarded in seduction, breach of promise of marriage, and bastardy suits. At the same time, although it was male defendants who risked incurring legal penalties for their alleged sexual misconduct, it was female sexuality itself that stood on trial. Civil sexual trials' very invocation of the importance of female chastity meant that the young women who initiated such trials took part in a complex process of asserting, then renouncing, uncovering, and then obscuring female sexual agency. In the end, the leitmotif of seduction meant that the public's prurient curiosity about the sexual revelations of unmarried young women might be masked as necessary, even chivalrous undertakings. Court participants were dispensing justice to the women seemingly wronged by male sexual predation.Footnote ⁴⁶

The legal success of civil sexual suits throughout the second half of the nineteenth century depended on female litigants' ability to construct narratives of sexual naiveté and vulnerability out of their own individualized experiences of intimacy. As will be discussed, these experiences spoke as much to women's volition as to their passivity. The trick for the prosecution involved a creative reworking of the sexual double standard and a forthright acknowledgement of men's and women's asymmetrical bargaining powers in romantic concerns. Precisely because women were culturally held to strict standards of chastity, contemporaries often assumed that men led women from the paths of virtue. Social and legal compassion for women caught in the web of illicit sex, therefore, derived from their mobilization of the victimization script.Footnote ⁴⁷

A key component of establishing young women's status as “victims” within the context of popular seduction stories was to underscore men's duplicitous romantic dealings. The dramas unfolding in Illinois courthouses similarly focused on the treachery of male sexual partners; however, they simultaneously uncovered some of the sexual motives of unmarried women. Prosecuting litigants, for example, often discussed their sexual negotiations with intended husbands in terms of the promises male partners had professed but failed to keep. From these kinds of statements, we can ascertain that many young women in long-term courting relationships deemed their willingness to become sexually active outside of marriage as reasonable exchanges: male partners pledged to marry them, young women agreed to premarital sex. Take, for example, Florence Whitworth who resisted her boyfriend, August Scharf's, sexual advances “for a while,” but eventually “yielded through persuasion.” Florence defended her decision to become sexually active with August by linking this choice to their recent engagement. “I submitted under his promise to marry me. He promised everything, anything,” she reasoned in the estranged couple's 1886 bastardy litigation.Footnote ⁴⁸

Other young women pointed both to nuptial pledges and to the language and practices of romantic love to explain how and why male partners convinced them to engage in out-of-wedlock sexual relations. During the 1871 seduction proceedings her father brought against her former fiancé, Rebecca Cosner focused her courtroom statements on her onetime beau's many romantic gestures. The young man had, for example, frequently voiced the following platitude to his sweetheart, “Depend on me and I will be true to you.” He had also surprised her with three different engagement rings over the course of their 4-year-long courtship. Rebecca defended her willingness to engage in premarital sex with her former flame by drawing on the language of romantic love. “No man should take such liberties with me, but I never knew before what love meant,” she professed. Although this declaration conveyed a kind of implicit acknowledgment of the immorality of sexual intercourse outside of marriage, it simultaneously articulated and justified an understanding of coition as the ultimate expression of love.Footnote ⁴⁹

The expressions attributed to men negotiating sex with female partners bear remarkable likeness to one another, perhaps indicating that these patterns of erotic negotiation were customary ones. Although there is no means of determining exactly what couples said to one another in the moments before becoming intimate, it is likely that female litigants recognized the kinds of rhetoric that would be accepted by courts. Their courtroom statements indicate that men quite frequently combined pledges to wed and promises to “take care” of their lovers in the event of out-of-wedlock pregnancy with blanket assurances that they would do their partners “no harm.” In an era in which literary depictions of out-of-wedlock sexuality generally led to abandonment, social exclusion, disease, and even death for the female partner, these generalized declarations appear to have provided reassurance to young women contemplating intimacy with fiancés. Take, for example, 17-year-old Rena Stone who kept steady company with her flame, Charles Mighell, for more than 6 months before their relationship turned physical. According to her testimony in the 1896 seduction suit brought by her father, Charles had hoped for and attempted to pressure Rena into a sexual relationship much earlier. In addition to promising Rena marriage and telling her he loved her, Charles asserted he “would not hurt her, he knew there wouldn't nothing go wrong.” Rena also claimed that Charles had insisted he was knowledgeable about contraception from his conversations with physicians. She perhaps understood such comments as affirmation that he could help prevent her from becoming pregnant.Footnote ⁵⁰ Rebecca Cosner's fiancée, Armsted Mains, employed similar inducements in his sexual negotiations with her. Armsted first asserted his love for Rebecca and gave her a present of peppermint candy hearts. He then declared, “No one will find out.” After the pair's first sexual encounter, Armsted reassured Rebecca: “I did not hurt you.” According to Rebecca, she “believed” Armsted's latter claim because of her “complete confidence” in him. The take-away point for courtroom listeners in both of these narratives was that Rebecca and Rena ended up pregnant and alone in spite of their respective partners' repeated promises.Footnote ⁵¹

Young women in romantic relationships appear to have understood “no harm” statements as additional confirmation that beaus would marry them—especially if something were “to go wrong”—or perhaps that they might help them prevent pregnancy altogether.Footnote ⁵² It seems likely that in employing this type of language, men themselves referred to a tradition whereby nonmarital sex was viewed as harmless and pleasurable. Edwards County resident George Mayes drew on this tradition when he told his teenaged partner she “would not suffer” if she allowed him to have “connection” with her. In other words, many men pursuing erotic encounters would have agreed with James Newman, who informed the young woman he propositioned that “a little screw don't hurt nobody,” or with the aforementioned Charles Mighell, who simply asked his sexual partner, “What's the matter with having some?” Young women were, of course, the chief targets of a public discourse aimed at preventing out-of-wedlock sexuality. Still, this cultural emphasis on female virginity before marriage was not the only view of sexuality nineteenth-century women encountered. In their erotic negotiations with lovers, young women themselves were presented with an alternative vision of feminine sexuality: a world where out-of-wedlock intimacy presented no harm. Many women implicated in sexual trials undoubtedly lived to regret their decisions to become sexually active outside of marriage. It is nonetheless significant that the rhetoric of “harmless sex” so frequently factored as an extenuating circumstance behind women's out-of-wedlock sexual encounters.Footnote ⁵³

As has been discussed, private negotiations between courting couples advanced outlooks on female sexuality other than pure denunciation. Significantly, these conversations became part of the public sexual conversation when female litigants exposed them in local courthouses throughout the nation. Conceivably, these public airings of the circumstances behind young women's sexual decisions lent a measure of respectability to their choices. In other ways, also, the courts unwittingly cast premarital sex as typical (if not acceptable) behavioral patterns for couples promised in marriage. Developments in mid-century seduction and breach of promise law, for example, allowed exemplary damages for both types of litigation if complaining witnesses could prove seduction transpired “under promises of marriage.” These legal changes were motivated by a desire to more harshly penalize men found guilty of what was perceived as especially heinous sexual misconduct; that is, “tricking” women into sexual relations by promising them future respectability.Footnote ⁵⁴ Civil sexual law, then, perhaps authorized contemporaries to deem sex between affianced twosomes as ordinary, rather than simply as objectionable. Whatever kind of message court attendees took from civil sexual trials—whether one of tolerance or of reproof—young women's sexual storytelling undoubtedly contributed to the prurient cast of such litigation, because in recounting the circumstances under which they were “induced” to engage in out-of-wedlock intimacy, female litigants could scarcely avoid hinting at their own sexual motives.

The seduction script thus helped establish young women's sexual victimization and vulnerability, and it gave rise to racy legal conversations. This dialogue, in turn, offered legal participants' vicarious access to other's sexual pasts. Furthermore, the use of titillating language in civil sexual suits and the prurience that discourse invoked actually cemented women's roles as victims. Female litigants often appeared as damsels in distress, particularly when asked delicate questions. Newspaper accounts of sexual trials frequently noted that prosecuting witnesses would tear up or blush while giving their testimony. Litigants' comportment during trial might even temporarily disrupt court proceedings. Margaret Murtland, party to an 1872 seduction suit, choked up during her trial examination, forcing court officials to allow her leave the courtroom until she could “quiet herself.” Similarly, Ada Silvens' whisper-quiet testimony compelled the judge who presided over the case to repeatedly request that she speak up. In a sense, female litigants' behavior in court functioned as a way for legal participants to read their modesty. Securing legal justice may have required frankness, but successful prosecution witnesses could not appear too eager to disclose their sexual pasts.Footnote ⁵⁵

On the other hand, we should be careful not to assess young women's reluctance to testify exclusively as a courtroom strategy. There were very real reputational issues at stake for both the women and men involved in sexual suits. Given the cultural emphasis on women's sexual decorum as a reflection of character, there was obviously more at stake for female plaintiffs. In most instances, young women's reticence probably did not reflect a premeditated tactical maneuver. Rather, in the minds of jury members and the wider courtroom audience, bashfulness on the part of plaintiffs could serve as affirmation that young women possessed the very kind of sexual naïveté that made them vulnerable to male sexual predation in the first place.

Newsman sometimes held the prurient elements of sexual trials out as bait. A Quincy Whig reporter not only alerted his readers as to when the interrogation of witnesses and litigants in upcoming divorce trial, which implicated a minister who had allegedly seduced several of his female parishioners, was likely to occur, he also undoubtedly piqued local community members' interest in the scandal. “In the trial of the case, which will probably take place early in the day, a sufficient amount of nastiness will doubtless be developed to gratify the taste of the most prurient,” the reporter pointed out. Beyond disclosing the extent to which courtroom conversations would appeal to voyeuristic sensibilities, newspapers also tended to emphasize that examinations were certain to uncover young women's active roles in sexually compromising situations. A Quincy Herald reporter, for example, focused his coverage of an 1894 seduction suit on the proceeding's potential for digging up the female litigant's lascivious conduct: “It is claimed that his lawyers are hunting up evidence to prove that Stessia was a naughty girl all around and that there are a number of culprits who will swear to improper intimacy with her.”Footnote ⁵⁶

In order to further illustrate the ways in which civil sexual proceedings both uncovered female sexual agency and advanced narratives of sexual passivity—all the while fanning the prurient flame—we will now turn to a case study analysis of an 1882 Livingston County Court bastardy trial. As was customary for prosecuting litigants in both civil and criminal sexual suits, Rhoda Halleck, the litigant in question, took the witness stand first. A lengthy portion of the prosecution's examination was devoted to substantiating that Rhoda was involved in a long-term relationship with the defendant, a partnership that was abruptly terminated by him. After detailing the essentials of her year-long courtship with thirty-something-year-old Joshua Cox (he took her to plays, called on her at her parent's home, held her on his lap, and kissed her), Rhoda also addressed the when and why behind the termination of her betrothal.

Eventually, however, the prosecution lawyer and, later, the defense attorney, would direct Rhoda into more suggestive dialogue. Both men drew out the explicit details of the couple's sexual relationship. Howcver, the lengthy exchanges between Rhoda and the two lawyers served narrative purposes other than titillation. The prosecution needed to establish, first and foremost, a believable account of intimacy. Given the awkward and likely uncomfortable scene of Rhoda and Joshua's alleged sexual tryst, Rhoda's lawyer maneuvered carefully through a series of questions designed to orient listeners to particular cultural assumptions. In response to her attorney's query, “Tell the jury what he did,” Rhoda initially only divulged that the defendant had “connection” with her sometime during the evening of July 4, 1881. It would appear from Rhoda's account that she and her sweetheart—like other unwed couples of their era—found makeshift areas for privacy and intimacy.Footnote ⁵⁷ In Rhoda's case, it happened to be on a chair seated on the front porch of her family's two-room home while her relatives were busy enjoying Fourth of July festivities. Still, Rhoda's legal representative had chosen his words skillfully. Before Rhoda even spoke, the court was directed to view the couple's erotic relationship as something Joshua did. Rhoda then affirmed her role as the passive player in a sexual exchange with Joshua.Footnote ⁵⁸

Having described the scene of the erotic act, Rhoda's lawyer next asked her to comment more fully as to how coitus might transpire in such a position and location. “Explain manner of the connection more specifically and also the position of the chair?” her attorney prompted. The prosecuting witness then disclosed that Joshua had tipped the “armless chair” back against the “door casing.” She meanwhile was situated on the outer edge of the seat. The subsequent round of inquiries not only positioned Rhoda's account of intimacy in more recognizable terms (it likened her depiction of sex to couples engaging in intercourse while lying down), it also obscured her sexual agency.Footnote ⁵⁹ “What effect had that on your body?” “I was in the same position as if I was laying down and he in front of me.” “How was his left arm?” “It rested on the back of the chair.” “What did he do with his right hand?” “He used it to assist himself?” “Did he disarrange your clothes?” “Yes, he unbuttoned them and put them part way down.” This series of questions and answers presented Rhoda and the defendant's coital act as not so different from the more conventional “missionary position.” It also established details not demanded by Illinois' bastardy law, which only required the prosecution to ascertain paternity.

Rhoda and her attorney's call and response exchange relayed to the court an important narrative of betrayal by a romantic partner. Also, her trial examination helped convince jury members that the defendant had initiated sexual relations, whereas the plaintiff had merely acquiesced. As this excerpt should make clear, it was often lawyers who excelled as the star actors of Illinois' courtroom dramas. Certainly the legal counsel who argued cases for prosecuting witnesses labored mightily in order to refashion single women's out-of-wedlock intimate encounters into stories of male aggression and female naïveté and victimization. As has been discussed, prosecuting attorneys used the script provided by literary tropes of seduction, casting their clients' experiences in ways that fit that mold. Although downplaying Rhoda's role in a sexual exchange did not establish that Joshua was indeed the father of her child, it did help her garner courtroom sympathy; a feat that in and of itself helped frame her sexual tale as plausible.Footnote ⁶⁰

The defense, on the other hand, focused on the complexity of nineteenth-century women's undergarments, clothing that ultimately might take more than one hand to unfasten. “Describe again how connection took place and where were his limbs,” Joshua's attorney, C. C. Strawn, began. “His limbs were straddled across mine, my limbs were between his, his left hand was on the back of the chair, and the heaviest weight of his body was on his left leg [which remained on the ground],” Rhoda replied. Her response revealed that the defendant had only one hand for unbuttoning and situating her clothing, as he had used his left hand to keep the chair steady. Strawn next posed five questions to Rhoda regarding the intricacies of her undergarments. The witness admitted in these exchanges that there were both buttons and clasps on her “undersuit” and “drawers.” This line of questioning was intended to cast doubt on Rhoda's narrative of sexual passivity. How did one person with the aid of only his right hand undo and partially remove multiple layers of complicated garments? The defense, undoubtedly, wished to imply that Rhoda herself assisted Joshua in this endeavor, a fact that might undermine her carefully construed story of female compliance to male sexual pursuit.Footnote ⁶¹

Dismissing assertions of sexual passivity only went so far. However much the rhetoric of seduction had seeped into all trials that arbitrated out-of-wedlock sexuality, jury members might believe the prosecuting witness in a bastardy suit initiated or encouraged intimacy and still determine paternity as the prosecution directed. It was up to the defense, then, to present more overt challenges to the young mother's intimate tale. In Joshua Cox's bastardy suit, the defense attempted to invalidate Rhoda's testimony by arguing that it was physically impossible to engage in coitus in the manner she described; demonstrating a lack of imagination on their part! Joshua's attorneys ultimately took a route increasingly tread by late nineteenth-century litigators, drawing on the authority of science and medicine to discredit Rhoda's depiction of coitus. “In your judgment,” Strawn inquired of Dr. Stiles, a local physician, “do you think defendant could have connection with the prosecuting witness on a chair sitting astraddle of her lap?” As the defense no doubt anticipated, the Fairbury-area physician replied that he did not think Joshua could.Footnote ⁶²

Rhoda's lawyer meanwhile rebutted this damaging defense testimony by associating Rhoda's description of the intimate incident with the more typical missionary position. He rather pointedly asked Dr. Stiles, “Wouldn't a woman resting on the edge of a chair tend to expose her person so as to have the necessary connection?” After tersely agreeing with the attorney, Dr. Stiles attempted to salvage the damage done by his reply. His statement indicates the extent to which out-of-wedlock sexual trials invoked personal acts of imagination from all of its participants. Even learned men might end up reflecting on and disclosing their own sexual histories. “In my opinion it would be impossible to have connection in that position. I cannot say positive because I have never tried it,” Dr. Stiles sheepishly disclosed.Footnote ⁶³

After Dr. Stiles's rather detrimental cross-examination, Joshua's legal team went a slightly different route. They offered as pertinent evidence not simply the coital act but also the physical condition of Joshua's “private member,” which they claimed had a curvature “malformation” from birth. Although this type of disclosure might have been embarrassing for the defendant, his attorneys undoubtedly hoped that this revelation would, at last, undermine Rhoda's rendition of intimacy with Joshua (in the end, even this tactic did not actually push the county court to decide in his favor).Footnote ⁶⁴ Joshua Cox's introduction of the physical appearance of his genitalia was actually not typical for this type of litigation. Still, it served parallel voyeuristic purposes to the more typical practice of putting female bodies on display.Footnote ⁶⁵ After Joshua and the physician who testified for him described the condition of his penis, court attendees were led right back to the scene of the sexual offense. Witnesses were again asked questions as to the likelihood of intercourse transpiring on a chair. Judge and jury were again implicitly directed to imagine the purported intimate act between Joshua and Rhoda, particularly as they now knew the defendant's reproductive organ “crooked downwards.”Footnote ⁶⁶

The sexual accounts told by prosecuting witnesses (and torn down by defendants and the lawyers who argued cases for them) epitomized a reputable kind of prurience, one that offered titillation without the seedy connotations of pornography. In other words, the location that housed these lurid conversations mattered a great deal. In the courts, quasipornographic tales of out-of-wedlock sex manifested not as quasipornographic accounts of illicit sex, but rather as faithful presentations of the facts of a case. However much legal participants enjoyed listening to and watching young women painstakingly detail their sexual experiences, in a courtroom setting, prurient sexual pleasure might be transformed into a kind of unfortunate incidental: a byproduct that did not inhibit the true purpose of such litigation, which was to find and deliver justice.Footnote ⁶⁷

Male Erotic Storytelling

Recounting sexual experiences before eager listeners was a practice outside the courts as much as inside the legal system. Sexual trials attracted such large audiences at least in part because community members spent considerable time gossiping with one another about particular episodes of sexual transgression, engendering prurient curiosity in these scandalous goings-on in the weeks or even months before proceedings ever began. Although community gossip networks drew both male and female participants, particular aspects of sexual storytelling have a decidedly masculine cast. Just as voyeurism went hand in hand with the sexual disclosures of female litigants, the intimate storytelling of defendants and male witnesses functioned, in many ways, as extensions of male camaraderie rituals.

Numerous scholars have detailed urban men's—young and old, married and bachelor—likeminded involvement in a “culture of sexual storytelling.” Men talked to male friends about their sexual experiences as a way of establishing their “manhood” and of relating to their peers. Illinois' civil sexual trials indicate that rural and small-town men similarly rehashed their out-of-wedlock sexual adventures to one another on a regular basis. Again, they participated in male patterns of sociability in doing so. When sexual escapades brought men under the purview of the courts, they continued to draw on this culture of male bonding. Defendants, for example, often depended upon sexual conversations they had overheard to identify acquaintances and friends able—or at least willing—to testify to intimacy with prosecuting witnesses, as emphasizing the licentiousness of female partners served as one conceivable way for defendants to exonerate themselves. Significantly, the sexual revelations disclosed by defendants' witnesses were some of the most scandalous given over the course of sexual trials, because such narratives played up young women's flirtatious behavior and active roles in sexually compromising situations. Men's erotic storytelling, however, did more than create and stigmatize “women with reputations.” It also constituted one way for men to publically confirm membership in a sexually aggressive breed of manhood: a categorization that did not always bode well for those seeking exoneration from sexual offenses.Footnote ⁶⁸

Whereas rehashing actual intimate bouts to comrades or spinning yarns about desired/imagined erotic encounters to one another constituted a male cultural tradition followed by men in a wide variety of settings and periods, the nineteenth century ushered in a particularly spirited version of this custom. Rising literacy rates, a growing public world of commercialized sex, and more democratized access to sex-themed reading material helped construct and promote a more national male sexual culture. Through print accounts and visual depictions of sex, men in disparate parts of the nation could now vicariously take part in the erotic adventures of real and invented characters. In other words, men in pursuit of erotically charged subject matter did not have to rely only on the conversations those in their peer networks generated. The Civil War seems to have contributed to a more sweeping culture as well. Publishers of licentious literature leaped at the chance to turn a profit amidst the military conflict. Sizeable numbers of fighting men eager for distraction from the death and disease that surrounded them presented erotica dealers with quite a captive market. Civil War troops' predilection for purchasing, reading, discussing, and passing along indecent print material has long been noted by historians. Although the end of the war signaled, to some extent, a decline of this market, some men undoubtedly continued the pastime picked up in the war years, whereas others shared memories of the diversion with friends and family back home.Footnote ⁶⁹

Throughout the second half of the nineteenth century, Illinois men participated in the culture of sexual storytelling with aplomb. In many instances, Illinois men's tendency to brag to their peers about their sexual exploits got them into trouble in the first place. A character witness for Jay Slocum's abduction trial put it this way: “[Jay] blowed about himself and told big stories about himself and what he had done and could do.”Footnote ⁷⁰ Frank Maynard similarly opened his mouth about his extramarital sexual relationships one too many times. Seen as a friend and confidante to the adolescent boys in his Sterling neighborhood, Frank permitted area youth to play in his livery barn. He also talked candidly about sex to the boys. In the summer of 1889, when his young paramour, Maggie Nillen, found herself “with child” and appealed to the local justice of the peace for redress, Frank's young comrades stood before the legal system one by one to recount Frank's frequent admissions of impropriety with Maggie. Both of Frank's two young employees, for example, agreed that Frank “commenced talking about girls nearly every day.” The disclosures the youth recollected to the court undoubtedly helped to substantiate the veracity of Maggie's story in the minds of the jury. And these courtroom confessions had greater consequences than the recompense Illinois' bastardy law imposed on fathers of illegitimate children, as Frank would later be convicted of perjury for his testimony in the paternity suit.Footnote ⁷¹

Other Illinois men similarly recounted alleged sexual experiences in ways that emphasized male bravado and reflected rather insensitive attitudes toward their sexual partners' quandaries. Their confessions subsequently became part of the evidence that prosecuting attorneys brought to the court's attention. James Kessinger, for example, told his friend and then-landlord that he “could get all he wanted” from the young female neighbor helping his wife with housework. James allegedly boasted, “I don't care if I knock her up, I can light out for Montgomery County and she will not follow me there.” Nathan Chambers and Ad Hutson engaged in a bit of eroticized swaggering while at work together rafting logs in rural, southeastern Jasper County. Nathan gloated that he “had already been the downfall of one of the Harper family [his wife].” The young man also claimed to “love” his sister-in-law, Ollie, better than his wife. He then informed his buddy he “intended to make a point on Ollie,” and that he would “ruin” her. Ad, for his part, encouraged Nathan's sexual fantasizing. “If I was in your place, I would make a point there if it took twenty years,” he assured his friend.Footnote ⁷²

Sometimes peers used this male pattern of sociability to encourage the men engaged in out-of-wedlock intimate conduct to face the consequences of their actions. These attempts were not always unsuccessful, and they offer glimpses into young men's sometimes cavalier treatment of former flames. Edward White merely laughed when a male neighbor told him he had not “served” his sexual partner, Margaret Murtland, “right.” He then made light of his misconduct, exclaiming, “A stiff prick knows no conscience.” Joshua Cox, defendant in an 1882 bastardy suit, also conferred with friends over the “scrape” he found himself in. Joshua's neighbor told him to stop “dodging” the law, although he softened the sentiment with a bit of comic relief: “If I had been having as much fun with that girl as you have, for the last two or three years, and as good fun as that must have been, I would pay for one little insignificant baby without squealing.” Joshua, however, took the defense tactic that others in similar positions took: that is, to insinuate someone else had fathered the child. “If you had been having fun, you would hate to pay for some other rooster's work,” the young man averred.Footnote ⁷³

Courts called upon male cohorts who were privy to the sexual boasts of their friends not only to corroborate young women's intimate narratives, but also to cast doubt on them. Because Elzina Laws swore in court that she had only been intimate with the man she named as the father of her child, as a defense tactic he subpoenaed other young men to confess to their “familiarities” with Elzina. Three witnesses, John Martin, James Miner, and Lewis Burkholter, ultimately testified to erotic encounters with the prosecuting witness. As these young men had bragged about “taking liberties” with Elzina to their friends, the prosecution unsurprisingly summoned these neighborhood youth to back up the character witnesses' sexual storytelling. Henry Campbell, for example, relayed his conversation with James Miner to the assembled court, expletive and all: “Miner told me what he did to her. He said he crawled in her window and fucked her.”Footnote ⁷⁴

In much the same way, Archibald McCoy, a defendant in an Ogle County bastardy suit, drew from the culture of male sociability and erotic disclosures in order to invalidate Mary Hilger's paternity charge. Archibald subpoenaed two witnesses to reveal to the court their crude conversations with Mary's cousin, Philip Dietrich. Tellingly, the pair not only avowed that Philip had verbally flaunted his exploits with Mary; they also declared he had encouraged them to see for themselves if he told the truth. The young men, 19 and 20 years of age, respectively, obliged Philip, hiding behind a chicken coup at the time specified by him. Purportedly, they then witnessed the cousins engage in sex a few rods away.Footnote ⁷⁵

True or not, peeping Tom accounts proved voyeuristic on several levels. This type of testimony suggests that the culture of sexual storytelling was truly vicarious in some situations—offering its listeners not only imaginative entry into a past sexual incident, but also literal visual rights to an intimate act in the process. No doubt inspired by his constant “talk of girls,” George Hahn and William Nillen, two of Frank Maynard's adolescent employees, decided they wanted to verify his tales of sexual intrigue for themselves. Therefore, when Maggie Nillen, William's sister, arrived to visit Frank one winter evening in 1889, the boys concluded that this time was as good an opportunity as any. After watching Frank and Maggie go into the bedroom located in the barn as was the couple's customary practice, George proposed that he and William “see what they are doing.” In other words, the boys did not “skip off,” as was their usual habit. Instead, William good-naturedly aided George in his scheme, yelling and stamping his feet outside the barn, so that his friend could peek into the window of the bedroom undetected. George, for his part, returned the favor and similarly made “a good deal of noise” when it came William's turn to observe the lovebirds at work. Several months later, the boys recreated the illicit scene and their prurient roles in it for the assembled court. In this way, courtroom narrations of sex—those given by individuals directly involved in the act and those supplied by peeping Toms—offered actual sexual incidents a vicarious life beyond the experience itself, and in the decorous public setting of the courthouse, no less. The young men's salacious testimony proved a source of titillation to court spectators. In the days after their appearance on the witness stand, several local residents filed into the defendant's barn to judge the placement of the bed and the location of the window, all in hopes of ascertaining the kinds of sinful activity the youth might have engaged in during that moonlit night.Footnote ⁷⁶

There is some evidence to suggest that sexual storytelling was not an entirely masculine pastime. This proof yet again originates from the courtroom disclosures of character witnesses. For example, several witnesses in the seduction suit brought by 16-year-old Mary Morgan's family in the summer of 1874 were asked to address the reasons behind her licentious reputation. According to one deponent, he formed his opinion of Mary's “lack of character for chastity and virtue” from both personal observations of her “loose” conduct with other local young men (he once saw her sitting with a male neighbor's knee between her legs) and her own admissions of impropriety. Mary had allegedly told him that she had hidden in an old well with a neighborhood boy, where they “remained for more than an hour and had lots of fun.” Nineteen-year-old French immigrant Ersalie Larreau purportedly told her sister and friends that her fiancé would “never find out with whom else she had to do.” Likewise, several young male witnesses in Frank Maynard's perjury trial testified that Maggie had enthusiastically informed them of her erotic adventures with various male admirers. As the women who revealed their sexual pasts before male and sometimes mixed audiences were generally unmarried young adults (their listeners were usually single and youthful as well), it is likely that such conversations held flirtatious connotations. Although some women may have advertised their intimate experiences to men or to peers of both sexes, their self-aggrandizement did not serve the same purposes as male sexual boasting.Footnote ⁷⁷

When men recounted their out-of-wedlock carnal bouts to one another, they both asserted and affirmed the centrality of sexual expression to masculine identity, but if sexual storytelling made the man, it unmade the woman. Mary, Erselie, and Maggie all endured harsh criticism from character witnesses because of their sexual pasts and their public admissions of untoward behaviors. Whereas the legal system frequently tore down male defendants' reputations for “truth and veracity,” men rarely faced scrutiny for wanton pasts, despite the fact that they were on trial for sexual offenses. In a culture increasingly enamored of dualistic understandings of male and female sexual natures, self-professed sexually active women had “reputations,” braggart sexually active men merely possessed virility.

If sexual storytelling often formed a substantial portion of the evidentiary material that brought out-of-wedlock sexual encounters to the attention of the courts in the first place, this culture of male sociability through erotic disclosures lived on when litigants and witnesses took the witness stand. Despite the considerable monetary penalties incurred if convicted of seduction, breach of promise, or bastardy, some defendants apparently could not resist the opportunity for personal aggrandizement that a full and attentive courtroom audience posed. Married and forty-something George Peak spent a healthy portion of his time at the witness stand cutting up at the expense of the prosecution lawyer. “Don't you think the child looks like you,” the attorney asked. George's irreverent rejoinder likely generated a few smirks and perhaps provoked some laughter from the assembled participants and spectators. “I think it looks more like you,” he retorted. But George ultimately shot himself in the foot when asked about his relationship with the adolescent prosecuting witness. His assertion that he “was a family man,” must have rung hollow in light of his other, less virtuous admissions. George, for example, informed the court that although he had not been in the plaintiff's home for the length of time indicated by her testimony, he had been at the nearby church, jesting with the young women gathered there to clean it. He apparently provoked the women to the point of exasperation, as they proceeded to chase him out with their brooms. This interesting bit of information was one thing, but George simply could not help himself. He blathered still more damaging confessions, no doubt to the chagrin of his lawyers. “I sometimes pinch arms of girls and consider myself something of a ladies' man,” George offered. He added, “I might have plucked her in fun,” after the prosecution lawyer asked whether he had ever “put his hands on Miss Laws.”Footnote ⁷⁸

William Sutton, defendant in an 1870 assault and battery suit, similarly used his trial examination as a platform for advancing his reputation for virility. Virginia Johnson, the prosecuting litigant, sought to recover damages for William's forcible attempts to fondle her. As neighbors established that William had publicly admitted to “intimacy” with Virginia on several occasions, he wisely did not wholly refute Virginia's allegation. Rather, William tried to redefine that intimacy. Whereas Virginia insisted William had grabbed her breasts, coerced her into his bedroom, and endeavored to place his hands under her dress, he said he had only attempted to kiss her. His version of the erotic encounter denied use of physical force. He alleged that he simply went on with his daily farm work after Virginia rebuffed his attempt to kiss her. As the prosecution tackled the task of rendering this tame report suspect, they must have been quite pleased when the defendant himself abetted them in their legal strategies. “Have you been in the habit of kissing your hired girls?” Virginia's lawyers inquired. William, of course, responded in the negative but he also seized the opportunity to reveal the amorous practices of his youth. He answered, “No, I formed a habit in my youth of kissing girls but hadn't been in the habit of doing so since then.” The prosecution would not let the defendant off so easily. “Why then did you kiss Miss Johnson?” they retorted. William's reply to this query indicates the lengths that some defendants went to establish their romantic experiences with women, even when such revelations jeopardized their defense. “I thought Jenny was a fair subject for kissing and that it would not hurt her any nor me either,” William confidently disclosed. If George Peaks and William Sutton labored under the impression that their marital status and age (George was in his early forties, William in his early fifties) might shield them from jury members' swift judgments, both were sorely mistaken. The county courts handed down guilty verdicts for both men. In the end, both the jury panels and the judges who presided over the trials agreed that self-professed “ladies' men” might do more than pinch girls' arms or attempt to kiss their hired girls.Footnote ⁷⁹

Male witnesses, too, felt the import of an attentive courtroom audience. Telling sexual stories to buddies was an enjoyable end in itself. Therefore, when the local legal system authorized individuals to repeat those tales in the formal, public setting of the courthouse, many took on that charge with gusto. In many ways, the legal environment lent intimate narratives an air of respectability that they simply did not possess outside the trappings of the courthouse. When men read, viewed, and passed along popular print depictions of out-of-wedlock sexuality to one another or swapped stories about personal sexual experiences, they participated in an expected, if not accepted, culture of male camaraderie. This pattern of sociability, however, was not something one took up at dinner tables, in parlors, or in most cases, in the company of women. However, the juridical system could and did bring a pastime operating on the margins of respectable life to light before male and female spectators and legal participants; therefore, it is little wonder that nineteenth-century men appear to have relished the occasion to narrate the particularly juicy details of real, embellished, and, undoubtedly in some cases, fabricated sexual experiences to their courtroom audiences.

Although the nineteenth-century Illinois legal system possessed an aura of authority and formality both because of the state power that backed it and because the courthouses that personified its control were increasingly constructed to reflect grandiose and ornate architectural styles, we should not assume that the individuals who stepped inside its doors were overawed by its decorum. The courthouses that dotted the largely rural landscape of Illinois were hardly reflections of the modern, efficient law that elite legal professionals wished to implement. First of all, the local courthouse was both a legal and a social space, and individuals in the surrounding locale gathered as much to convene and gossip with neighbors and friends as to observe legal processes at work. Lawyers had by this time wrested the task of presenting legal arguments to the court from ordinary litigants, but they, in most cases, still learned the trade in the local law offices of their elder colleagues, not in professional law schools. Illinois county court judges were likewise often poorly trained by the standards of prominent professionals. Finally, the local men acting as jury members were sometimes personally acquainted with one or both of the litigants. This familiarity, of course, impeded their ability to deliberate as impartial, “truth” seeking bodies.Footnote ⁸⁰

The fact that the faces representing the legal power of the state were often familiar ones influenced the ways in which witnesses conducted themselves on the stand. Some proceeded in the same conversational and casual tone as if they were merely rehashing intimate tales before old pals. William Morgan, a thirty-something-year-old witness for the defendant in an 1875 breach of promise case, relayed his purported sexual adventures with the prosecuting witness in the following fashion. “I don't know how often we had sexual intercourse, but did whenever we had a good chance. She told me once that her stepmother had looked in the window and saw me have her stripped naked and the next time I went there she said we were caught,” the witness divulged. He then repeated, in a kind of braggart fashion, his role in the erotic encounter: “That was a fact—that I had her in that position [naked].” Louis Shanks, a 23-year-old witness for the defendant in an 1883 bastardy suit, addressed the assembled court in a similarly carefree, tongue-in-cheek manner. “The first time I ever had anything to do with her,” Louis declared, “I went over there on an errand, you might say, to borrow an axe . . . she invited me into the house and while I was there I had sexual intercourse with her . . . after that we had intercourse whenever opportunity was offered up.”Footnote ⁸¹

William and Louis did not simply spin good stories. They also tapped into cultural assumptions about the sexual habits of men in general and women void of virtue in particular. According to both witnesses, they engaged in sex with their respective partners simply because the “opportunity” for intimacy was so frequently presented to them. In doing so, the young men merely followed and satisfied the voracious sexual appetites often branded as natural to the male physiological makeup. In participating in out-of-wedlock sexual encounters, the young women in the tale, on the other hand, defied their natural constitutions and better instincts. Louis and William, then, also had to supply logical explanations for the girls' behavior. Women who allowed themselves to be stripped naked before windows or who agreed to intimacy on the mere pretext of an errand-run were hardly ordinary specimens of the fairer sex. In the world outside the courtroom, these articulated cultural markers of difference afforded narrator and listeners a bit of amusement and pleasure as well as alerting the listeners to potential leads for their own future sexual pursuits. Inside the courtroom, these tales of sexual intrigue also provided entertainment to all participants, save the prosecuting witness herself. But more importantly, when expressed in the principal forum for social and political decision making, intimate narratives and the practice of sexual storytelling took on qualities of necessity, even legitimacy.Footnote ⁸²

Although both men and women congregated in courthouses to hear juicy tidbits about their neighbors, the most important audience for litigants remained male. It might seem, then, that defendants implicated in sexual trials possessed a distinct advantage, as they could draw on male traditions of erotic storytelling to win over the men acting as judge and jury. Disclosing one's sexual conquests before these legal officials, however, involved more than mere commentary on the promiscuity of female partners. First and foremost, erotic storytelling affirmed a manhood that associated male sexual experience and bravado with virility. As we have seen, this identification did not necessarily translate into a successful legal strategy. However, in authorizing defendants and male witnesses to deploy this socialization tradition, the courts helped popularize already circulating ideas about aggressive sexual expression as an integral aspect of manhood, inseparable from the masculine identity. In other words, the legal system perhaps unconsciously naturalized the very types of sexual predation they were supposed to police. In many ways, this counterintuitive outcome of legal sexual regulation is perhaps the least surprising of its many unintentional effects.

The Sex Talk of Legal Professionals

Attorneys not only prompted litigants and witnesses to indecorous discourse; they also often initiated it. Scurrilous sexual humor sprung from the public realm of officialdom, as much as it was spoken by private individuals with little direct legal power. The sex talk of legal professionals demonstrates the extent to which sexual sensationalism became more than a way to frame out-of-wedlock intimate episodes as legal problems. Ribaldry also served as one of the more valuable weapons within the legal arsenal, and this kind of artillery could be mobilized by either side. Significantly, attorneys brought bawdy wit, absurdity, and comicality into play for specific ends; namely, to debate perceived differences between male and female sexual urges and propensities.

Although lawyers on both sides of sexual trials adopted provocative imagery and rhetoric in their courtroom pontifications, we will first consider the meanings behind defense attorneys' coarse sex talk. Sometimes sexually graphic lines of questioning took the form of slang. One of the questions posed to the prosecuting litigant in an assault with intent to commit rape best exemplifies this technique. The defense attorney quipped, “Tell the jury how far he got his old Joseph into you?” Yet, the lawyer was not being crass simply for the sake of being crass. Rather, his off-color question was geared toward particular aims. If the prosecuting witness signified anything other than bewilderment or incomprehension, she might endanger her case. From the standpoint of contemporaries, female familiarity with and comprehension of indelicate vernacular did not exactly denote sexual innocence or naiveté.Footnote ⁸³ In other cases, legal representatives instigated eroticized exchanges through insinuation. For example, the defense lawyer in an 1875 breach of promise suit skillfully urged Sarah Mann, the prosecuting witness, to comment on her supposed sexual encounters with men other than the defendant. Furthermore, he interrogated her in a manner that implied she had in truth engaged in sexual relationships with multiple partners. “He had done a great deal for you, hadn't he,” the attorney prodded. After Sarah responded affirmatively, the defense resumed his rather elaborate ploy at portraying Sarah in a negative light. He asked, “And you were very good to him?” Sarah answered, “I tried to be.” With this assertion in hand, the attorney dealt Sarah's character a death blow—“And was good to all those other men after you made this promise, as you say, to him?” In the event that the court had missed the meaning of this exchange, the defense then stated his case unambiguously—“Never had connection with other men?”Footnote ⁸⁴

Attorneys, then, joined litigants and witnesses in addressing the court in a language decidedly un-Victorian. Along these same lines, jury panels and court observers were not the only members of the juridical ensemble who “took spoonfuls of eroticism to help the legal medicine go down.” If the briefs directed to appellate and high court judges serve as any indication, lawyers anticipated that justices would welcome their efforts to incorporate bawdy humor into their legal arguments just as audience members and jurymen appreciated legal talk imbued with a healthy dose of ribaldry.Footnote ⁸⁵ Lawyers “played to the crowd” in their statements both to trial attendees and to the judges who reviewed the case after it was appealed. The fact that actors at every level of the judicial hierarchy participated in coarse sexual talk and jesting, and that such language infiltrated all facets of the legal process demonstrates just how critical vulgarity was to the adjudication of out-of-wedlock intimacy.

On the other hand, defense lawyers might use the opposite tactic in brief writing, and instead bemoan the voyeuristic, crude aspects of civil sexual suits. Drawing on middle-class notions of sexual decorum and respectability, they lamented the graphic—and to their minds—licentious evidence such suits forced the court to consider, or worse yet, to visualize. Of course towing the line of Victorian sexual ideology allowed defense teams to take the moral high ground, a tactic intended to secure acquittals for defendants. According to defense lawyers, it was not their client who forced a “tribunal of justice” to hear and adjudicate stories of intimate debauchery. Rather, their client only defended himself from the brazen accusations of an immoral woman. Some, therefore, framed their participation in sexual proceedings as disagreeable, particularly the necessary task of eliciting and articulating scabrous sexual accounts. Joshua Cox's attorneys, for example, began their brief to the Illinois Supreme Court justices with something of an apology: “We dislike to discuss the facts, as this story is so disgusting.” These lawyers did go on to recount the evidence, however “disgusting,” in ways favorable to their client.Footnote ⁸⁶

In order to criticize the high number of guilty verdicts rendered in civil sexual trials, defense teams sometimes labeled the entire juridical process as exercises in prurience. C. A. Lake and M. B. Wright, counsel for an 1872 bastardy suit—although particularly pithy—were not alone in their estimations of the true purposes of like cases. “Twelve verdant men . . . are ready to swear that all the defendant is charged with are true, and more besides, that the complaining witness, poor thing, has been shamefully ruined,” Lake and Wright wrote sarcastically. The lawyers then conjectured what jury members really wanted to hear—“They are ready for a verdict as soon as they are sworn, only they want to hear the complaining witness tell all how it was done, whether it was this way or that; perpendicular as in this case, horizontal, or at an angle of forty-five degrees, it is all the same, the verdict is guilty in every case.” N. M. Knapp and J. G. Henderson, council for an 1874 bastardy proceeding, similarly bewailed the commiseration given to young women implicated in sexual litigation. These attorneys drew the justices' attention to the morally questionable motives of courtroom onlookers. The legal representatives scolded, “A crowded courtroom who, whatever may be said of its moral aspect or the motives that brought most of it together, sympathized with the woman, blind sympathy without judgments.”Footnote ⁸⁷

Although defense attorneys frequently aligned with the central tenets of Victorian sexual ideology in their briefs to judges in order to establish themselves as the vanguards of public morality, some were not above supplying a lurid turn of phrase to the court as well. For example, one prosecuting witness's graphic description of her first sexual experience prompted the lawyer for the defense to give an explanation other than coercion for the witness's repeated sexual encounters with his client. Evoking the legal specifications for seduction and abduction, which required, for conviction, proof that a defendant offered “enticements” or “inducements” to the prosecuting witness, the defense conveyed an overtly sexual understanding of what exactly a man might do to beguile a young woman. The lawyers proposed, “We might say here in regard to enticement, that the extraordinary length of time that this Woodhull Vulcan occupied in performing the act of copulation—half an hour—without counting the preliminary digital performance of twenty minutes, may have been to her irresistible inducement to visit the defendant.” In one succinct blow, the defense lawyers made light of the prosecuting witness's assertions of enticement via sexual coercion, they also implicitly discounted the notion that women indulged in out-of-wedlock sex because they were manipulated by male partners. Instead the attorneys insinuated that women valued and were attracted to men with sexual prowess. The defense had further arsenal up their sleeves and went on to paint the possible legal conviction of the defendant as utterly nonsensical. “We hardly think it comes within any known statute to send a man to the penitentiary because nature had endowed him with the organs of Priapus, and the endurance of Hercules,” they jeered.Footnote ⁸⁸

Counsel for other defendants in out-of-wedlock sexual trials similarly deployed intentionally humorous visions of male and female sexual desire in their arguments. These kinds of statements ultimately acted as calculated commentary on the character and trustworthiness of prosecuting witnesses. The attorneys of an alleged teenaged seducer, Archibald McCoy, contended that the plaintiff's account of a singular intimate incident with her young neighbor contradicted the “common experiences of mankind.” His council addressed the court rhetorically: “If appellant being, as he is, a young, unmarried man, disposed to gratify his passions, is it fair to presume he would have been satisfied (when finding his addresses yielded to so graciously) with one single act of gratification?” Single, young men simply did not walk away from the opportunity for repeated sexual encounters. Why, Archibald's lawyers wanted the Illinois Supreme Court justices to speculate, had their client not sought out the company of the prosecuting litigant on other occasions? Archibald's legal representatives drew on the plaintiff's report once more in order to contest the idea that a virginal young woman could be seduced in such a short period of time. The lawyers remarked, “He seems from her testimony to have been with her barely long enough to have performed the act, yet long enough to have overcome the scruples of a coy and diffident maiden, impossible!” George Peak's attorneys were similarly engaged in underscoring inconsistencies in the plaintiff's rendition of intimacy with their client. They simply remarked, “The citadel of a woman's virtue conquered at the first advance?”Footnote ⁸⁹

Whereas the arguments of Archibald McCoy and George Peak's counsel pointed to the discrepancies between the conduct expected of bashful virgins and the behavior exhibited by prosecuting witnesses, some attorneys were blatantly dismissive of the idea of superior female virtue. Take, for example, the men who represented an 1876 bastardy defendant. These lawyers not only urged the high court to tread carefully (and judge wisely) as they entered “the dingy portals of this Plutonian cave, where sleep the lazy sentinels that watch o'er female virtue,” they also mockingly dedicated their argument brief to “one of the Sleeping Sentinels who woke up in time to suggest the points in appellee's brief” (Figure 1). The wisecracks of these attorneys highlighted the fact that notions of female sexual innocence and virtue often brought young women legal victories, but did not seem to keep these women out of trouble in the first place. Adopting militaristic terms to describe female sexual virtue—as many defense lawyers did (citadels, sentinels)—was also quite a departure from sentimental portrayals of women's morality found in the era's literature and increasingly espoused by middle-class domestic culture. Again, we should consider the discursive work that a calculated turn of phrase might do. If notions of female sexual naiveté emphasized by prosecuting lawyers encouraged courtroom listeners to view prosecuting witnesses as quite helpless and in need of the protection of (male) judges and jury, representing female virtue in strong, martial terms might just prompt these same listeners to see women as quite capable of guarding their own virginity; a viewpoint that would not bode well for the women who failed in that regard.Footnote ⁹⁰

Figure 1. 1876 Bastardy Trial Defense Brief.

Legal professionals on the opposing side of civil sexual proceedings also merged sophisticated and hard-hitting arguments with pure titillation. Prosecuting attorneys for the aforementioned Rhoda Halleck, for example, tried to turn Joshua Cox's own testimony against him. Joshua maintained that he had never had intercourse with Rhoda, though he did admit he had “never tried anything harder in his life.” Rhoda's council pounced on this confession and in their brief to the superior court reminded legal officials of its implications. “At the time appellant was making these efforts towards intercourse with the prosecutrix he certainly did not consider his private member very seriously disabled by the ‘curvature’ now relied on by his council to reverse this case [italics in orginal],” the prosecution chided.Footnote ⁹¹

Elizabeth Strausbaugh's attorneys took analogous steps to those of Joshua Cox's lawyers, though the Woodford County bastardy case they prosecuted took place several years earlier in 1867. By the middle decades of the nineteenth century, the legal counsel who argued cases for prosecuting litigants opted to refashion their clients' experiences of out-of-wedlock intimacy into stories of male aggression and youthful female imprudence and victimization. As was discussed previously, lawyers latched on to culturally resonant literary tropes of seduction and articulated to the court real life accounts of these grievous sexual maneuvers because they understood that such tactics worked. In their brief to the high court justices, Elizabeth's attorneys displayed their penchant for seduction novels (as well as their apparently frustrated career aims as novelists). Like many of the fictional stories this brief was modeled after, however, the attorneys' argument reads more like a how-to manual in the arts of seduction, rather than a demonstration against it.

The attorneys' dramatic rendition of Elizabeth's coercive sexual ordeal recreated for the Illinois' high court justices an actual scene of lust and violence, struggle and resistance, and, finally, male sexual triumph and female capitulation. “He tripped her, pushed her up against a fence, held both her hands, she remonstrated, he insisted, while the flame of the libertine was at its height, burning up, destroying, and eradicating all the finer, nobler, purer instincts of the man,” the lawyers wrote. Evidently, precise instructions in how to initiate the seduction of an unwilling female did not raise judicial ire as long as it was accompanied by strongly worded rebukes for rakes. Having no doubt caught the attention of their illustrious readers with this bit of melodrama, Elizabeth's counsel moved on to establish still more smutty details—“And as the demon passion received each breath of the fan, it seemed an incentive to more earnest pleading [from Elizabeth].” The attorneys, however, saved the best for last, and fashioned a climactic finale for the justices, full of salacious imagery and verbiage. “Under the pressure of being encircled in the arms of the villain, pulsing over with the very madness of his unhallowed passions, having hold of his flesh, the inordinate desires of his perverted nature flashing with lightning speed from every touched portion of his body, were instantaneously communicated to her . . . which finally led her to yield to his desires,” they hyperbolized. The brief thus culminated on an explanatory note, perhaps titillating the high court justices in the process. It resolved why Elizabeth succumbed to the defendant's “lusts” in terms that nineteenth-century individuals recognized. In the lawyer's rendition of her sexual experience, Elizabeth herself lacked much agency either to accept or resist the defendant's advances. Still, cultural capital existed for those women able to don the mantle of female victimization. For the many nineteenth-century women who turned their out-of-wedlock sexual experiences into legal problems, these terms were unequivocally better than none at all.Footnote ⁹²