SEDUCTION:

By: Executive Committee of the Editorial Board., Lewis N. Dembitz

The act of inducing a woman or girl of previously chaste character to consent to unlawful sexual intercourse. The Mosaic law (Ex.xxii. 15, 16, Hebr. [A. V. 16, 17]) says: "And if a man entice a virgin that is not betrothed and lie with her, he shall surely endow her to himself for a wife. If her father shall refuse to give her unto him, he shall weigh out silver according to the endowment [not dowry] of virgins." As may be seen under Ketubah, the groom makes a written contract with the bride, securing to her, aside from his other duties, upon death or divorce, fifty shekels of silver, the virgin's endowment. For the protection of wives the Law fixed the minimum of this sum at a mina (in Babylon sixty shekels, among the Hebrews fifty shekels) for a virgin, and half as much for a widow.

The Mishnah (Ket. ii., iii.) does not speak of any means for forcing the seducer to marry the seduced girl, but only of the penalty in money. It nowhere defines the meaning of "enticing"; but it seems that no misrepresentation or promise of marriage is implied by it; the enticed (or rather the deceived) girl is named only as one who consents, in contrast to the victim of force, who is spoken of in Deut. xxii. 28, 29. When the act takes place in a city, the girl's consent is presumed in the absence of witnesses to the contrary; if in the field or forest, where her cries for help would not have brought any one to defend her, the presumption lies the other way (ib. 26, 27).

The status of the girl's father in the text greatly narrows the application of the Law; for she must apparently be young enough to be in the father's power; that is, she must be either below the age of puberty (less than twelve years and a day) or a "na'arah" (A. V. "damsel"), which she remains only until she is twelve years and six months of age; for thereafter she is "overripe" ("bogeret"). To the Western world of the present day this restriction would make the whole Law worthless for lack of cases to which it could apply; not so in Palestine, where very few girls, in the days of the Mishnah, were not betrothed at the age of twelve years and six months.

Though the death of the father before the seduction defeats the literal enforcement of the Law, the tradition in such a case awards the amount of the penalty to the girl herself; so, also, if the father should die before the penalty is adjudged. But if he dies after judgment, the benefit thereof descends to his sons as heirs.

Where the Law forbids intercourse between the seducer and the seduced under penalty of death, the mulet ("ḳenas") of fifty shekels is not paid; for, under the general principle (derived from Ex. xxi. 22), "those deserving of death do not pay." But where the act is punishable only by excision ("karet"), which carries stripes, or by stripes only, as in several cases of incest, or some other forbidden connections, the mulet is only remitted if the seducer has been criminally convicted, according to the rule, "Those who are flogged do not pay."

Aside from this class of cases, there are ten other exceptions for which the mulet is not paid: in the case of the (1) bogeret; (2) impotent ("aylonit"); (3) insane; (4) deaf-mute; (5) one refusing (a girl married by mother and brothers when she was an infant and who refuses her husband when she reaches puberty); (6, 7, 8) one converted from the heathen, redeemed from captivity, or manumitted from bondage after the age of three years; (9) one divorced, though still a virgin; (10) one of an evil name, proof of which is established by the evidence of two witnesses to acts of solicitation.

It is held by the old authorities that the mulct can be adjudged only upon proof by witnesses, not upon the seducer's admission; this doctrine, when carried out, must have almost entirely nullified the Law for inflicting the mulct or penalty.

But the seducer is liable also for depreciation ("pegam") and for shame. The former is estimated on the basis of the loss of value in a slave-girl for being deflowered; the latter depends on the social standing of the girl and inversely on the rank or standing of her seducer. The damages under these two heads go to the father along with the fifty shekels, or to the girl when he is dead; and they may be awarded on the seducer's admission.

Maimonides ("Yad," Na'arah) treats the law of the seduced and of the violated girl very clearly, drawing from Ket. ii.-iii., the Gemara on the same, and Ḳid. 46. He adds, almost entirely on his own authority, that the penalty and damages should be paid only when the seduction has taken place without the father's knowledge and consent; but that for the father to say to a young man, "Cohabit with my daughter, and pay me penalty and damages," would be highly sinful, the father breaking the precept of the Law (Lev. xix. 29), "Profane not thy daughter to make her a harlot," and the daughter sinning against the prohibition, "There shall be no harlot ["ḳedeshah"] of the daughters of Israel" (Deut. xxiii. 18). No right of action can arise from such a shameful agreement.

One incident of seduction—the father's responsibility for the support of the child, the fruit of lawless love—is not treated by the Talmud or the codes in connection with the "penalty" and damages arising from the act, but is disposed of elsewhere. It has been shown under Agnates that the child of an Israelite from "anywhere," except one born of a Gentile or a bondwoman, is considered a son or a daughter for all the purposes of the Law, and more especially for the purposes of inheritance. So also the father is bound for the support of his child in infancy, no matter whether the child was born in wedlock or not. An ordinance ("taḳḳanah") proclaimed at Usha in the latter half of the second century regulates the child's right to support; but this right was undoubtedly recognized long before. The right of a daughter to be supported till "overripeness" (i.e., the age of 12½ years) or betrothal, whichever happens first, from the estate of the dead father, is derived from the mother's ketubah, and does not therefore belong to a natural daughter (see "Yad," Ishut, xix. 14).

The Shulḥan 'Aruk says very little concerning the seduced damsel, as the jurisdiction of the courts over the subject had long before been lost, and this code confines itself to practical subjects.