An End To Seduction Pt. 01

Gilbert & Sullivan's Trial By Jury

"JUDGE. For now I'm a Judge!

CHORUS. And a good Judge, too!

JUDGE. Though all my law be fudge,

Yet I'll never, never budge,

But I'll live and die a Judge!

CHORUS. And a good Judge, too!"

BACKGROUND

This takes place when most US states imposed a criminal liability upon the seducing male. There was also the tort (that is, a civil wrongdoing) of seduction, which was inherited from English common law. A husband could sue his wife's seducer for the loss of a servant.

This (fabricated story) is how the criminal and civil liability for seduction may have ended. For purists I have to admit that "all my law is fudge", though it does quote Eller v. Lord correctly. The Eller award is equivalent to $7000,000 in 2024 terms.

THE STORY BEGINS

Brian Vance had spent the night in a hotel room with Jill Hamp, the wife of Gerry Hamp. This was due to Brian seducing the respectable Mrs Hamp.

A FEDERAL OFFENCE

Seducing a married woman was a federal offence, punishable by a minimum of 2 years and a maximum of 15 years in jail. In addition the seducer would be fined.

The police had refused to bring a criminal charge against Brian.

ONE LAW FOR THE RICH...

Many felt that this was only because Brian was part of the mighty (and wealthy) Vance family. The Vances traced their ancestry through to the Mayflower. But that is being unfair to the police. Under advisement from a well appointed (and expensive) solicitor Brian had said nothing to the police.

THE JURY IS A DEFENCE

The police couldn't bring a case against a popular, rich and well respected man in front of a jury of men. The jurors would be sympathetic to someone doing what they may have done themselves. They wouldn't want to see "one of us" being jailed for an indiscretion.

The jury knew that a subsequent civil action would see the seducer have to pay compensation. That was fair and reasonable. To spend up to 15 years in jail was excessive, unless the acts following the seduction were excessive.

The legal maxim is that "excessive penalties mean fewer convictions". That in essence is why the right to jury trial is essential part of every good judicial system. If the written law is wrong the jury can bring forward a common sense verdict. And where the law says "15 years for a night of passion" the jury will likely say "Not Guilty" even if the evidence really is "beyond a shadow of doubt".

THE BURDEN OF PROOF

The burden of proof for a conviction in criminal charges is high, and rightly so. Brian could spend 2 to 15 years in jail as well as being fined. Guilty verdicts have to be "beyond a shadow of doubt". The legal elements that characterise seduction allow the defence to throw plenty of doubt. Male jurors would be willing the defence to produce as many doubts as possible.

UNRELIABLE WITNESS

The police also took into account that Mrs Hamp was an inconsistent witness. She didn't lie but was easily led. Any half decent lawyer would bamboozle her in court. And the Vance family would hire the best lawyer money could buy.

By not bringing the case to court they would save Mrs Hamp having a torrid time in court.

JUDGE LOUIS BRADEY

Judge Louis Bradey was not a first rate mind and he never expected many difficult cases. The cases that came before him were usually clear cut. That suited Judge Louis. He didn't seek fame and high judicial appointments. It was his civic duty and he was rightly proud of his service to his community. As well as being a judge he was also as leader of many community groups. He lent his name to many community ventures, like the enlargement of a local school. They responded by calling the enlarged building "The Louis Bradey Building".

Judge Louis was content with easy to decide cases. Instead he was presented with the most difficult case of his career. A case that would end up in the US Supreme Court and then only be decided on a majority verdict. He is now known to posterity as "Judge Louis Bradey, the seduction case man".

THE FACTS OF HAMP v VANCE.

Brian Vance had spent the night in a hotel room with Mrs Jill Hamp, the wife of Gerry Hamp. The fact of a shared hotel room was not disputed. Gerry Hamp sued Brian Vance for the seduction of his wife.

It should have been an open and shut case. The prosecution would cite Eller v. Lord, where a South Dakota court awarded $25,000 to the plaintiff.

The procedure is that the seduced woman would be called to the witness stand to point out the deceiving lover. Mrs Hamp would therefore be called and point at Brian Vance and say "He is the man who seduced me."

Unless Brian denied the charge then the case was over. Then the only difficulty would be deciding the level of damages. Or at least that was what Judge Louis thought.

If Brian did deny the accusation of seduction he risked being jailed for perjury.

ON THE BALANCE OF PROBABILITIES

Civil cases are decided on the basis of "on the balance of probabilities". Thus this lesser burden of proof than the criminal "beyond a shadow of doubt".

A jury would probably decide that it was unlikely that Brian had spent the night with Mrs Hamp and not had sexual relations of any sort with her. That would be a highly unlikely verdict, even for an all male jury.

An all male jury would be sympathetic to a fellow man. But they would find it hard to think that Brian and they merely drank cocoa together.

Then, of course, Judge Louis would increase the amount of damages that Brian would have to pay to Mr Hamp.

THE BIG DIFFERENCE

But what Judge Louis didn't know was that the Vance family would move heaven and earth (by any legal means) to stop Brian having to pay a single cent in damages. and they had a novel form of defence.

THE CASE COMES TO COURT

The case proceeded as normal. The accusation of seduction by Brian of Jill was read out. Mrs Hamp duly identified Brian as her seducer. Mr Hamp's solicitor wanted the going rate of $25,000 in compensation.

The Defence never challenged the assertion that Brian had been in the hotel room and he had returned to his home about 11 a.m. the next day. Nor did Brian's solicitor deny that Brian had the chance to have sexual congress with Mrs Hamp.

NOT LEGALLY MARRIED

Brian's defence raised 2 important lines of defence. One was that Mrs Hamp wasn't legally married to Mr Hamp. If Mr Hamp had no wife then he had no legal right to compensation for seduction of a woman, even though she called herself Mrs Hamp.

Mr Hamp's solicitor was taken by surprise. He sought and obtained a 2 hour break in proceedings. It turned out that Mr Hamp was married to another lady but had not told Jill about this. Jill believed they were married because she didn't understand that a "common law wife" is not legally married. Their marriage was with friends in a woodland setting. Jill thought this meant they were legally and morally man and wife.

Jill was distraught when she learned that they were not legally wed. Brian's solicitor took advantage of Jill's anger and distress to offer her compensation. Jill accepted this offer.

A CONSTITUTIONAL RIGHT TO MARRIAGE.

The defence solicitor then came back to court. Judge Louis expected the case to end there. But he was wrong. The defence lawyer said "My Lord, I have to confirm that my client was not legally married to the lady who called herself Mrs Hamp. However they shared the full range of married activities and still intend to maintain that mode of shared existence. The rule is that the wife is the servant of the husband and the husband is the servant of his wife.

The fact that their marriage was without benefit of clergy does not stop this mutuality of interest and obligation. Therefore my client continues to want recompense for the loss due to any married husband whose wife is seduced by another man."

The defence were granted an adjournment of 2 working days, which effectively meant 4 days. They had to find people willing to attest that Mr Hamp had lived with Jill and had never been with another woman. Nor had Jill been with another man.

Mr Hamp's solicitor asserted that common law marriages were accepted as if sanctioned by a trained minister. Many communities had no licensed minister. The community had not one. A marriage ceremony is a fundamental right under our constitution. Everyone has the right to freedom of religion; alone or in community with others and in public or private. This was a community asserting its rights to marriage.

Judge Louis knew he was being asked to judge on a novel interpretation of the American constitution.

NO RIGHT TO POLYGAMY

The defence of course was keen to kill off this attempt to abuse the American constitution. They said "My Lord, you are asked to accept polygamy as a constitutional right. It has been declared unlawful through the passing of Edmunds Anti-Polygamy Act of 1882.

If my Lord is to accept that this common law marriage is a legal marriage then he is over ruling the Edmunds Act.

For Mr Hamp is married beyond legal challenge. He is married to his first wife and his only legal wife. He is married even if he has left his legal wife to live with an unsuspecting woman. Even though they who shares their marital home. His second relationship, I will not call it a marriage. for it is not a marriage. And because it is not a marriage it does not give Mr Hamp the rights of a married man.

This is because there can only be one Mrs Hamp, and that is not the person who pointed at my client earlier."

At this stage Judge Louis realised that he needed time to consider this argument. He ordered an adjournment so he could consider this matter at his leisure. But of course, he had only heard the first counter claim. His headache would only get worse.