Resisting Seduction & Seductive Resistance: Courtroom Conflicts Over Consent in the Late Eighteenth Century
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When twenty-eight-year-old Louis-Charles-Philippes stood trial for rape in 1769, his lawyer relied on an unusual defense. Rather than refute the evidence against his noble client, Monsieur Perron disputed the very possibility of rape. Nature, he argued, programmed women to repel rapists; “her prayers, if they have a decided tone, become orders; her tears, her sobs crush the most firm resolution.” Under attack, women summoned extraordinary strength, and their weaknesses transformed into weapons. Such was the case for the alleged victim, fifteen-year-old Marie Plou. By contrast, Louis-Charles-Philippes was an enfeebled veteran whose service in the Seven Years’ War had left one arm limp. The accused barely stood a chance against Plou, Perron protested. Even if he had assaulted her, the girl’s failure to resist suggested her ultimate complicity. As Perron put it, “Rape is [...] impossible without the consent of the person attacked.” To Perron, resistance to sex paradoxically implied desire for it.
Anne Aubry staked an opposing position when she petitioned the criminal courts of Paris just six years later. With her attorney’s assistance, the lace maker recounted how Germain Antoine Sabatteau had lured her to his apartment under pretense of piecework. There, he seized Aubry and pinned her to a settee, whereupon she “fainted from the shock Mr. Sabatteau’s brutality had occasioned.” After a prolonged period of unconsciousness, Aubry awoke to discover that “he had sex with her without her giving any consent.” Quite unlike Perron, Aubry and her attorney rejected the notion that resistance disguised desire. Instead, they argued, it testified to the egregiousness of the assault. Furthermore, consummation of the act did not indicate consent. Nevertheless, the young Parisian did not file rape charges against her attacker; she alleged seduction.
These episodes showcase the problematic place of consent or consentement in legal disputes over contested sexual encounters. Old regime judges rarely scrutinized consent in cases of rape. Their rulings reinforced the notion of sexual assault as a primarily physical violation. Rapists transgressed personal will or volonté only insofar as they infringed on husbands’ and fathers’ control over their wives and daughters. Accordingly, prosecution hinged on physical evidence – bruises, torn clothing, or screams – to confirm rape. Taking their cues from classical jurists, judges evaluated the extent to which women physically resisted attackers. But they rarely weighed women’s words to assess their assent or refusal. As historian Georges Vigarello puts it, a woman’s “non-consent” existed exclusively in its “material traces.” Defense attorneys like Perron mobilized these traces to contradict women’s verbal claims to non-consent. They deployed details of the victim’s social and sexual history to bolster the idea that she had welcomed sexual advances. Regret or ruse, they intimated, motivated her to retroactively cast a sexual encounter as rape. This strategy effectively circumscribed the conditions under which adult women could be understood to refuse sex. Its success amplified the stigma felt by accusers, making rape allegations rare.
But while consent receded from rape prosecution, it crept into legal conflicts over seduction. This umbrella term developed from the crime of rapt de séduction (abduction by seduction), designating unsanctioned marriage between minors. Early modern kings intended this crime to safeguard parental control over marriage and nullify mutual consent of the couple itself. Ordinary people, however, invoked rapt and séduction elastically and unpredictably. From the late seventeenth century, unwed mothers pursued these charges as forms of paternity suits. They argued that alleged seducers had solicited sex by force or with marriage promises. By the mid-eighteenth century, women deployed this strategy alongside language of consent. With the help of their lawyers, they contended that alleged seducers had unlawfully coerced their assent to sex or had ignored their refusals. In short, women staked a claim to their right to consent within the realm of sex.
Such assertions make criminal prosecution of rapt de séduction and séduction a crucial venue to explore the genealogy of consent within eighteenth-century society. Between 1730 and 1790, higher criminal courts in Paris tried as many as twenty such cases per year. Of these, I have selected a sample at five-year intervals, in addition to cases heard on appeal. Additionally, I consider concurrent cases of rape to gauge when and why claimants and judges classified coerced sexual encounters as seduction in lieu of rape. Finally, I examine the legal briefs or mémoires that publicized the most notorious of these cases for the entertainment of the reading public. Whether infamous or obscure, contests over seduction became showcases for debates about female will and decision-making power within the realm of sex. How much control did women exercise over their own bodies? Whom should the courts fault for breaches of female sexual honor? Responses to these questions ran the gamut, however they demonstrate how women, lawyers, and jurists strategically engaged with key Enlightenment questions concerning the self, will, virtue, and sexuality. These questions coalesced around the question of consent.
By orienting the question of consent around the courtroom, I contend that ordinary actors crafted Enlightenment concepts by accommodating them to everyday experience. Historians of Enlightenment too often trace the evolution of its key concepts through elite thinkers like Locke, Montesquieu, Hume, and Rousseau. They limit the concept of consent to its political iterations, anchoring their analysis on the notion of the consent of the governed. But consent possessed significance beyond the sphere of politics. While philosophes spilled ink over its meaning in the abstract, claimants in seduction cases recognized its role within day-to-day life. They wielded the word consentement to push back against coercive behavior that infringed on a woman’s control over her body and reputation. In so doing, they radically reconfigured rapt de séduction – a crime conceived as an abuse of parental consent in marriage – as an abuse of female consent within the context of sex and marriage.
The notion of consent that emerged from this dialogue was highly problematic. Women and their lawyers deployed the word consent to suggest female decision-making capacity within the realm of sex, while simultaneously decrying women who exercised that capacity. This problem underscores the key constraints against which claimants operated; unwed women could never claim to have freely consented to sex. Such an admission branded a woman promiscuous, dishonorable, and unworthy of the court’s protection. Paradoxically, the same stigma beset women who claimed to refuse sex. Rape allegations cast suspicion, rather than pity, on women who failed to repulse their attackers. The rarity of conviction, together with the reclassification of rape as seduction, concealed the reality of sexual violence perpetrated on unmarried adult women. However these obstacles only made seduction an even more important site of conflict. Within these cases, women manipulated Enlightenment language to defend behavior that diverged from gendered sexual standards. They re-construed sex-related crimes as offenses against their own will and person, rather than those of their male guardians. More broadly, they advanced a grassroots theory of consent that situated this concept within an individual frame in place of a patriarchal one.
Consent in rapt law and within the causes célèbres
The crime of rapt de séduction (abduction by seduction) emerged from competing state and church claims to authority over marriage from the sixteenth century onward. Where the church saw a union of souls, the crown saw a means of strategic social consolidation among elites. For that system to work, parents needed to exercise legal control over their children up to the age of 25. Mutual consent of bride and groom was antithetical in this vision of marriage, but it remained the cornerstone of the Catholic sacrament. Ecclesiastical law allowed minors to wed in the presence of a priest, which undermined the crown’s desire for control over elite marriages. Unruly young men could woo women of higher rank and convince - or coerce - them to elope. Over the course of the sixteenth and seventeenth centuries, the crown asserted its authority over the church by issuing laws against rapt, effectively removing “consent” from marriage practice. Men who employed deception or force to obtain an unlawful marriage warranted death by hanging.
When Louis XV issued his own edict on rapt de séduction in 1730, he did not simply echo his predecessors. The monarch reaffirmed the law’s core purpose in light of judicial application that only seemed to undermine it. As James Farr has shown, late seventeenth- and early eighteenth-century judges were hesitant to mete out death sentences to convicted seducers. More often, they recognized the social utility of arranging financial or marital settlements. In Brittany, judges offered guilty parties a choice between the scaffold and the altar. As one critic complained, this practice simply crowned the seducer’s intentions, as the victim’s parents and guardians possessed no power to halt a marriage they had opposed in the first place. Furthermore, the critic continued, unwed mothers could manipulate this practice to entrap men of high status into marriage. In short, judicial practice surrounding rapt ran roughshod over parental control.
Louis XV pushed back against these abuses of parental consent, assigning capital punishment to both elopement (rapt de séduction) and violent abduction (rapt de violence). Collapsing these two charges not only denied the right of bride and groom to marry by mutual consent; it made moot women’s consent to participation in the crime. Whether a young man conspired to elope with his intended or whether he kidnapped and raped her made no difference. Both exploits warranted death. Here, the monarch endorsed earlier judicial practice that sidelined female will entirely in cases of abduction or elopement. The law consequently confirmed parental authority while ignoring questions of consent and coercion within the unlawful couple itself.
But if Louis XV meant to simplify such cases by blocking the question of female consent entirely, the edict had the opposite effect. Lawyers debated the actions and intentions of women in causes célèbres or highly publicized cases of abduction and elopement that followed 1730. Did a woman’s complicity in her own flight constitute an extenuating circumstance for her so-called seducer? Defending the Marquis de Tavannes against charges of rapt in 1735, Pierre de Saulx argued in the affirmative. “If [the seducer] had her consent,” he wrote, “we must investigate the circumstances that accompanied or followed the abduction, ” because such “circumstances aggravate or diminish the crime.” The seducer who enjoyed his victim’s acquiescence did not merit death. To this end, De Saulx cited instances in which the Parlement of Paris or Louis XIV himself had granted clemency to non-violent seducers. The ink on the 1730 edict was barely dry when jurists began disputing the text of the law versus its intentions. Men like De Saulx placed the question of female consent front and center in these debates.
In fact, his line of argument in the Tavannes case would develop into the defense de rigueur for accused seducers. By mid-century, lawyers regularly portrayed alleged seducers as mere accomplices to proactive young women who had not only consented to illicit liaisons, but had contrived them in the first place. In one 1783 case, a tutor named Démarchis claimed that his student, Philippine, had independently devised her nocturnal escape. Only after several failed attempts to dissuade the girl did Démarchis relent to her demands and accompany her across France’s borders. This mémoire and others like it proffered a portrait of female agency to diminish the presumption of female passivity that undergirded harsh penalties for seducers. Blame belonged equally between the seducer and his supposed victim, lawyers implied; both had consented to their unsanctioned bond. Although strategic and self-serving, this rhetoric reframed disputes over culpability around the question of female consent.
Furthermore, lawyers for alleged seducers questioned the validity of parental control over marriage, as well as parental authority writ large. To that end, they depicted the victim’s parents as tyrannical or depraved. Minister Benjamin Beresford’s successful 1781 defense centered on dismantling the character of his mother-in-law. When Beresford eloped with seventeen year-old parishioner Sidney Hamilton, the girl’s mother kidnapped her daughter and transported her to France, hoping to profit from the country’s stricter laws against clandestine marriage. At court, Beresford’s lawyer depicted Sidney as a headstrong runaway who coordinated the plan to evade her overbearing mother. In another case, the accused parties answered accusations of abduction with allegations that the girl’s father had committed incest with her thereby forfeiting his patriarchal authority. These defense strategies challenged parental claims to control over marriage and increased the significance of female consent.
Of course, their adversaries – high status parents whose daughters had eloped or been abducted – stood by the letter of the law. They denied the relevance of female consent to the crime in hopes of legally dissolving an undesirable marriage. As a lawyer for the Hamiltons explained, the only consent of consequence was that of Sidney’s parents, “the essence of the [marriage] contract.” Of Sidney’s own will or volonté, he stated, “This will is hardly her own.” Parental will superseded that of children who remained legal minors. Furthermore, seducers’ influence over their victims nullified the decisions these women made. A mémoire against the tutor Démarchis explained that Philippine consented to elope only because “[Démarchis] succeeded in corrupting her will.” Underlying these arguments was the presumption that young women of status could not credibly condescend to elope with a man of inferior standing. As De Saulx put it, “a girl of condition” would never grant “full consent to such a shameful step.” De Saulx notably excluded poor women from this consideration, however they, too, would deploy similar rhetoric in their allegations against seducers.
Consent at court: Châtelet of Paris
By the time Louis XV published his edict on rapt, practice and theory of the crime rarely bore resemblance. Few seduction cases concerned young men who had abducted or eloped with brides-to-be. Instead, the majority involved men who had waved the prospect of advantageous marriage before women as an enticement to sex, and subsequently abandoned those women when they became pregnant. Complainants were no longer parents objecting to a mismatched marriage. They were women who sought marriage, or at very least modest financial damages, in order to repair the dishonor of unwed pregnancy. These legal contests were vastly different from the causes célèbres described above. The lawyers involved, however, came from the same circles, including Pétion de Villeneuve and Fouquier-Tinville. These men likely served as conduits between idioms of the salon and the street, prompting clients to tailor their narratives to broader legal and intellectual trends. As a result, complainants in these cases deployed the word consent in innovative ways that contributed to the transformation of rapt.
Strikingly, these women and their lawyers harnessed the notion that young women could not consent to their personal dishonor. Just as a seducer’s pernicious influence invalidated a minor’s consent to her elopement, that very same influence invalidated her consent to sex. Most complainants detailed the long-term process of pressure and persuasion that preceded an initial sexual encounter, often referred to as the moment a woman “consented to” a suitor’s desires.  As an example, chambermaid Felicité was 18 when she drew the attention of Roger, a cook in the same household. “Sentiments of honor” had always guided her actions and “distanced her from consenting to what he desired.” But those sentiments ultimately proved too weak. Roger assured Felicité that sex would not besmirch her honor because they planned to wed. His will eclipsed her own and she “had the weakness to consent to [sex].”  Felicité’s bestowal of consent marked her moral forfeiture and the triumph of Roger’s will over her own. Other complainants similarly pinpointed sex not simply as the locus of sexual dishonor, but as the loss of self-determination and control. Crucially, that loss rendered violence unnecessary. To explain why his client bore no marks of physical struggle, one lawyer asked rhetorically, “Is one obliged to take by force a woman whom one has seduced?” Persuasion alone placed a victim under her seducer’s power. Consent obtained by such means – even without use of physical force - was legally invalid.
Nevertheless, seduction narratives frequently involved violence. Women likely embellished details of brutality to garner sympathy from the officials judging their cases. These claims, whether truthful or not, constituted a legal strategy predicated on definitions of consent. As Denisart’s definition of consentement stipulated, “Nothing is more contrary to consent than that which is accomplished by force or fear.” Equally invalid, he added, was presumed consent based on the absence of signs of dissent.  Accordingly, claimants foregrounded circumstances that invalidated their consent to sex. For example, a servant described how her employer “solicited her to consent to his passions [...] by surprising her various times in her room at night.” Even claimants who did not describe sex in great detail noted that the defendant succeeded “by force,” “with recourse to violence,” or “despite her resistance.” In short, women argued that they had succumbed to sex only under duress.
Moreover, various complainants detailed fainting spells or forced intoxication that rendered them incapable of legitimately resisting or assenting to sex. In her 1775 complaint, Anne Aubry reported that Germain Antoine Sabatteau had cornered her in his apartment and announced “that she would not return as she had come.” Anne promptly fainted. But she nonetheless reported that her seducer experienced difficulty in consummating the act – and that he eventually moved her to another room under the pretext of reviving his still unconscious victim. In that room, “He took advantage of the time she was unconscious to have sex with her.” Two hours later, she reclaimed her senses. Anne’s narrative balanced incongruous claims to loss of consciousness and detailed knowledge of her seducer’s offenses. This protracted state of unconsciousness enabled Anne to claim her sexual innocence and insist that Germain acted against her will. Later in her complaint, she stated outright that, “He had sex with her without her consent.” Anne, like many other women facing the same predicament, described seduction an abuse of female will, rather than an abuse of parental authority.
Nevertheless, some women embraced the centrality of parental consent within marriage, especially when the grooms’ parents bestowed consent only to later rescind it. A claimant might mention the consent of her suitor’s family to justify her decision to engage in premarital sex, a tolerated practice among couples whose nuptials seemed assured. Marie Jeanne, for example, opted to “acquiesce” to her suitor’s “desires” only upon receiving “the consent given by the unanimous voice of his mother and relatives.” Another woman, Marie Anne, sought more formal assurances; she refused to fulfill her suitor’s sexual demands until his father acknowledged his consent to the match before a notary. Other claimants protested that their suitors had written letters to their parents to request written consent. Women cited the word “consent” to advance the claim that they had legitimately, albeit informally, contracted marriage with these men and their parents. Accordingly, unfulfilled promises constituted a breach of contract that implicated young men as well as their parents. This formulation of sex-as-contract was not new to the eighteenth century, but the application of language of consent to this strategy testifies to the reconfiguration of seduction as a crime against women instead of their parents.
This reconfiguration directly contested the notion, articulated by Perron in the rape defense mentioned earlier, that consummation implied consent. Accordingly, it challenged broader theories of sex and violence that had emerged by the mid-eighteenth century. Among others, Jean-Jacques Rousseau believed rape unnatural, characterizing sexual aggression as a consequence of artificial society. Within this context, he argued, resistance was not a response to masculine aggression, but an instrument of feminine control. “Phony, enticing refusals” reflected a natural predisposition to deception among females of all species, whether hens or humans. Women pushed men away to draw them closer. Many theorists agreed. “Like drops of water intensifying a flame,” physician Pierre Roussel argued, women simultaneously stimulated and quelled desire. Feigned resistance was but another weapon among an arsenal of diabolical feminine enticements. The very tenor of a woman’s laugh, the pamphleteer Cerfvol noted, could “lend to no all the force of yes.”  By contrast, complainants in seduction cases argued that resistance was not mere coquetry; it constituted an authentic response to violent, insatiable male sexuality. Consummated sex did not indicate consent, but rather testified to the egregiousness of the assault. Certainly, some women adopted this stance strategically, attempting to dispel the notion that they desired or invited sex. However this position had weighty ideological implications, as it brought the notion of female consent to the fore in contests over unsanctioned sexual relationships.
Jurists recognized these strategies and incorporated them in treatises that addressed rapt and séduction. Like claimants at Châtelet, they ignored the letter of the law and reframed these crimes significantly. Definitions of seduction focused on deceit but did not limit its object to unsanctioned marriage, in contrast to the edict of 1730. For example, the Encyclopédie defined seduction as “a deceitful fraud or trickery used to exploit someone and make them consent to an act or step against their honor or interests.” Similar definitions depicted seduction as the slow erosion of the victim’s will over time. The archetypal seducer wore down his victim’s moral defenses to convince her to have sex with him.
Without such an effort, many theorists argued, women were unlikely to willingly succumb to sex. Lawyer Jérome Pétion de Villeneuve explained that “[t]here must be a very powerful appeal for women to consent to an act whose consequences, embarrassments, and dangers she carries alone.” Fellow lawyer Menassier de l’Estre echoed this sentiment, arguing that no woman would “consent to a humiliating fault” without considerable pressure or interference. He criticized jurists who blamed seduction on women’s “insufficient virtue.” Seduced women did not merit criticism; they commanded defense.
These jurists concluded that the task of judges was to distinguish between women who were genuinely seduced and those who had abandoned themselves voluntarily. A true seducer deployed “fraud, willful misrepresentation, or confidence trick” to procure his victim’s consent. A woman who was not subject to such trickery could blame only herself for succumbing to sex. “If it is the effect of her full consent,” Jean-François Fournel explained, “she cannot complain except of the shortfall of her own virtue.”  In brief, a seducer’s guilt depended on his victim’s innocence. The word “consent” simultaneously acknowledged women’s capacity to make decisions about sex and condemned them for exercising that capacity. According to Fournel, judges were supposed to reward only those women who did not exercise consent and were simply passive victims of male trickery.
These standards of culpability point to the problematic implications of the word “consent” as it took shape in both theory and practice. The word itself did not stake a claim to women’s decision-making power in the realm of sex, but re-inscribed female passivity in the face of insistent lovers. Women at court consistently argued that they had been coerced to have sex by force or false pretenses. Many likely calculated that assertions to the contrary would have forfeited their claims to virtue. Accordingly, claimants declined to challenge the presumption that to willingly engage in sex made women wanton and thus unworthy of the court’s protection. Even while positioning consent as a criterion of lawful sex, they did so in the negative. Under no circumstances would these women dare to claim their capacity to freely exercise consent within the realm of sex. Ultimately, this rhetorical strategy circumscribed female sexual autonomy as much as men like Perron did.
Discursive wrangling within the courts demonstrates how concepts like consent and resistance took shape through everyday practice. As Carole Pateman has argued, scholars too often limited intellectual discussions of consent to the political sphere, ignoring “those areas of social life where consent is of practical importance to individuals” – marriage and intimacy chief among them. Eighteenth-century women and men mobilized words like “consent,” “will,” “force,” and “resistance” because those words were relevant to conflicts they faced in their day-to-day lives. Accordingly, historians must recognize those lives as laboratories of intellectual change about gender and sexuality.
One such intellectual change was the reconfiguration of rapt as a transgression of female will, rather than a contravention of parental authority. This development straddled various spheres within French society, with lawyers serving as intermediaries between elite and ordinary actors. Together, they recast women as the principal victims of seduction in lieu of their parents. Abuse of female sexuality mattered beyond the injury it posed to parental prerogative. The word consent was the linchpin of this shift. Its mere mention pushed back against royal law by which fathers and mothers monopolized control over their children below the age of legal majority. For better or worse, claimants and their lawyers placed the capacity to consent to sex – along with the consequences for doing so – in women’s hands.
The infiltration of consent within these contests demonstrates how lawyers recognized seduction as fertile ground for experimentation with Enlightenment concepts within the context of traditional legal and social structures. However the prevalence of this word in initial, unassisted complaints also gestures to the development of theories of consent at the grassroots level. Broader changes in ways of thinking about sex and gender did not simply trickle down from a discrete group of educated elites. Rather, they evolved from complex and unpredictable interactions between myriad actors – state and non-state, elite and ordinary, literate and illiterate, male and female.
Ibid. Convictions were rare and stigma fell on victims, rather than perpetrators. My own research at the Archives Nationales confirms that the vast majority of rape cases tried in Paris concerned prepubescent girls beneath the age of 12.
See for example James Farr and David Lay Williams, The General Will: The Evolution of a Concept (Cambridge: Cambridge University Press, 2015); Jonathan Israel, Democratic Enlightenment: Philosophy, Revolution, and Human Rights 1750-1790 (Oxford: Oxford University Press, 2011); David C. Rasmussen, The Pragmatic Enlightenment (Cambridge: Cambridge University Press, 2013).
Historians of the family have signaled its importance within burgeoning critiques of arranged marriage and calls for choice in its place. See for example James Traer, Marriage and the Family in Eighteenth-century France (Ithaca: Cornell University Press, 1980) and Allan Pasco, Revolutionary Love in Eighteenth- and Early Nineteenth-Century France (Burlington, VT: Ashgate, 2009).
Edict [22 November 1730], Marly; Reg. P. de Rennes 9 avril 1731. James Farr explains that the edict’s conflation of terms helped resolved conflicts between the Church and the monarchy over consent within the context of marriage. Farr, Authority and Sexuality, 98.
Réflexions sur une affaire qui occupe au palais tous les amateurs, par un vieux pilier d’audience qui dans sa jeunesse a couru le monde, et qui n’a point cessé d’être homme en fréquentant la grande salle et lieux circonvoisins (1782), 94. BNF 8-FM-3197.
James Farr’s study of Burgundy demonstrates that by the late seventeenth century, rapt de séduction served primary as recourse for unwed pregnant women to pursue marriage or financial aid from their former sexual partners. Farr, Authority and Sexuality, 110-123. My own samples of Paris and Grass reveal fewer than ten (Paris) and four (Grasse) cases over a span of forty years involving the geographic displacement of a couple with the intention to wed.
The factum was likely published in 1753. Damours, Réplique pour la Demoiselle de Veaux, Epouse de M Passerat contre le Marquis de Bandol. Et Madame la Présidente de Bandol (Paris: n.d.), 8. BNF 4-FM-25231.
Jean-Baptiste Denisart, Collection de décisions nouvelles et de notions relatives à la jurisprudence actuelle. 2nd Suppl. (Paris: Desaint, 1771), 46; “Consentement” in Encyclopédie, Ou Dictionnaire Raisonné Des Sciences, Des Arts et Des Métiers, ed. Denis Diderot and Jean le Rond d’Alembert (Paris: Briasson, 1751–1772), 4:32.
Antoine-Gaspard Boucher d’Argis, “Séduction” in Encyclopédie, Ou Dictionnaire Raisonné Des Sciences, Des Arts et Des Métiers, ed. Denis Diderot and Jean le Rond d’Alembert (Paris: Briasson, 1751–1772), 887.
François Menassier de l’Estre, De l’Honneur des deux sexes, et principes généraux sur les différentes espèces de rapts, de séduction, de subornation & de la violence (Paris: NH Noyon, 1785), 15. BNF FP-2022.