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How to prove fornication charges in colonial America

Posted by Kevin Hartnett  July 19, 2013 10:44 AM

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It’s an obvious point that still manages to seem surprising every time you’re reminded of it: Even in olden times, people still had a lot of sex.

Earlier this year, JoAnne Sweeny of the University of Louisville Louis D. Brandeis School of Law published a research paper called, “History of Adultery and Fornication Criminal Laws” in the United States. She notes that in New England in the 1600s, women were prosecuted for fornication—including what was termed “open and notorious” fornication—more frequently than for any other crime. In Massachusetts, they’d get you if you had a child outside of wedlock or within eight months of being married.

The most interesting part of the paper is the discussion of the evidence used to convict for these kinds of crimes. Adultery and fornication usually take place in private, and unless there’s a baby, it’s hard to prove who did what with whom. Given that, prosecutors frequently had to rely on circumstantial evidence to make their cases.

Sweeny cites cases in which any public displays of affection between two people were considered incriminating, down to a man putting his arm around a woman. Going riding or fishing together without the woman’s husband present was taken as highly suggestive of seamier activities off-screen. Spending the night under the same roof was bad, and even worse if it was in a hotel, and worse yet if it was in a hotel with a reputation for hosting untoward acts. One of the very most incriminating things a man could do, was to pay for a doctor to assist in a birth to a woman who was not his wife.

In all of these scenarios, your neighbors were your enemies. Sweeny explains that in order to protect the “peace and dignity of the state,” citizens were expected to keep close tabs on each other. This was true well into the 20th century. In a 1923 case in Georgia, officers of the town heard, from outside a woman’s house, what they described as “something like bed springs making a noise.” In what was surely a state of frenzy, they immediately tried to get into the house to catch the copulating couple red-handed.

Over time, laws relaxed. Adultery became defined more as a crime by one partner against another, and courts adopted stricter evidentiary standards around fornication (though change in these areas happened more slowly in some parts of the country, like the South, than others). In 1904, an Oregon court ruled that it was problematic to look at circumstantial evidence in a way that excluded “every other reasonable hypothesis save the guilt of the accused.” By this standard, finding two people together behind a locked door with a used bed was not enough by itself to prove fornication.

It’s surely a good thing that the law today is less ready to convict two people for sleeping together, but from a purely epistemological point of view, the Puritans were probably closer to the mark: If it looks like a duck and walks like a duck, it’s probably open and notorious fornication.

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About brainiac Brainiac is the daily blog of the Globe's Sunday Ideas section, covering news and delights from the worlds of art, science, literature, history, design, and more. You can follow us on Twitter @GlobeIdeas.
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Joshua Rothman is a graduate student and Teaching Fellow in the Harvard English department, and an Instructor in Public Policy at the Harvard Kennedy School of Government. He teaches novels and political writing.

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