Excerpted From: Taylor Nicolas, "Who Was Your Grandfather on Your Mother's Side?" Seduction, Race, and Gender in 1932 Virginia, 34 Yale Journal of Law & the Humanities 364 (2023) (154 Footnotes) (Full Document Requested)


TaylorNicolas.jpegWas Dorothy Short Black? And, more importantly, did she know it? These questions, odd-sounding and perhaps unsettling to the contemporary reader, were the ones raised by Leonard Harry Wood in the hopes of avoiding incarceration.

In April of 1931, Leonard was convicted of felony seduction by the Circuit Court of Rockingham County and sentenced to two and a half years in prison. The court had found him guilty beyond a reasonable doubt of "unlawfully and feloniously seducing under promise of marriage, one Dorothy Short, an unmarried female, of previously chaste character." Dorothy had been left not only heartbroken but also with child. Leonard appealed the decision, and the Virginia Supreme Court reversed his conviction, remanding the case on a question of fact: Dorothy's knowledge of her racial identity.

Seduction, one of the peculiar (and now defunct) "heartbalm" laws, has a long historical pedigree with roots stretching back to the seventeenth century. The right of action originally allowed fathers--and, by the nineteenth century, women themselves--to sue for damages where consent to sexual acts was procured with a promise of marriage and that marriage never came. In broad terms, seduction laws sought "to avoid private vengeance, to curb male sexual behavior, and to disgrace or harm the violator as much as a fallen woman." Chastity was a virtually constant prerequisite, and over time seduction became increasingly moralistic, fixated on protecting the virtue of primarily White women. In the mid-nineteenth century, White women reformers in New York led the charge to criminalize seduction. And by 1921, thirty-seven of forty-eight states, Virginia included, had criminal seduction statutes on their books.

This Article looks closely at the story of Dorothy Short and Leonard Wood, their relationship, and the criminal case that followed it in order to explore the ways in which seduction laws worked to create and recreate gendered racial categories, reinforcing the distinct boundaries of White and Black womanhood and dictating the ways that each was to be performed. At the same time, the Virginia Supreme Court's ruling in Wood and Dorothy's lived experience are an obvious testament to the plasticity of race, but also to the inconstant ways the courts have sought to make sense of it. Although seduction laws were facially race-neutral, but explicitly gendered (that is to say, a woman could not legally seduce a man), they cannot be understood without considering both race and gender. Seduction laws sit not only at the intersection of race and gender, but also at the intersection of laws regulating sex and governing marriage.

This Article looks to the existing scholarship on both seduction and miscegenation laws. The two bodies of literature are, in a sense, complementary; the former tends to discuss gender at length, but not race, while the latter considers race more fully than gender. The scholarship on seduction has not, for example, explored the ways in which seduction laws, because of their reliance on the substantive law of marriage, actually worked to both reinforce and police racial categories. For most of seduction era, every seduction suit was set against the backdrop of laws criminalizing interracial marriage, often called miscegenation, or anti-miscegenation, laws. Thus, every seduction suit necessarily involved some form of judicial racial inquiry and determination, whether explicit or implicit.

Miscegenation literature, by contrast, has reckoned more fully with the effect that those laws had on the formation of racial categories, but tends to treat gender only summarily (likely because, unlike seduction, miscegenation laws were never expressly gendered, meaning the cause of action was available to all genders). As Peggy Pascoe, Ian Haney López, and others have suggested, "the legal system does more than just reflect social or scientific ideas about race; it also produces and reproduces them." Pascoe treats miscegenation cases as data points that when plotted, chart the emergence and evolution of different racial ideologies over time. I follow in her footsteps, only looking instead to the crime of seduction and to one case in particular.

Thus, this Article's main contribution is shedding new light on Wood v. Commonwealth, and more broadly on the ways in which seduction influenced racialized understandings of gender then and now. I begin by offering the legal and historical context of Wood. This context includes the evolution of seduction laws, Black women's engagement with them, and Virginia's increasingly desperate efforts to establish an administrable legal definition of race in the years leading up to 1932. With that foundation laid, I turn to a close reading of Wood based on the record and court documents in my possession. I conclude by analyzing the Virginia Supreme Court's decision and discussing the lessons that Wood continues to offer race, gender, and identity conversations in the United States today. In this endeavor, Haney López's definition of race is particularly useful. He writes, "Race is neither an essence nor an illusion but rather an ongoing, contradictory, self-reinforcing, plastic process subject to the macro forces of social and political struggle and the micro effects of daily decisions." Wood is a testament to that and more.

[. . .]

When discussing this Article with friends, a joke about suing for heartbreak and how that should still be "a thing" inevitably gets made. But seduction laws--heartbalm label notwithstanding--were never about heartbreak. They were always about the value of a woman's chastity, first as her father's property interest, and later as her own moral one. Today, although far from perfect, laws, both civil and criminal, directed at non-consensual sexual encounters are more carefully honed and far more accessible than they were during the heyday of seduction laws. Seduction laws sought to protect the "pure, innocent, and inexperienced woman who may be led astray from the paths of rectitude and virtue by the arts and wiles of the seducer under promise of marriage." Ultimately, however, whatever void may have been left by the decline of seduction has not been filled as much as it has been abandoned with the changing of social mores.

As noted at the outset, while scholars have analyzed the ways in which law shapes social conceptions of race and, separately, analyzed seduction laws, this Article explored how seduction laws were powerful shapers of race and gender, not separately, but together, reifying White womanhood and its performance in the courtroom. As Pascoe writes, "In practice, miscegenation law acted as a kind of legal factory for defining, producing, and reproducing of the racial categories of the state." Seduction laws were similar factories--race-making by virtue of their reliance on substantive marriage laws, gender-making by virtue of their drafting. But White women were plainly not victims of the seduction framework--they had constructed, at least in part, the factory that re-made the gender roles they would later cast off. Before that occurred, however, seduction enabled the right woman--that is, the White woman--to exercise power and agency at times when she otherwise would have had none-to-little.

Dorothy's case is remarkable not just for its rarity and the record that survives. It is undeniably part of the "reformulation of race in the United States that began with the abolition of slavery and, in turn, continues to circumscribe the vision of racial equality projected by the Reconstruction Amendments." True, "[m]arriage may not be the first thing that comes to mind when considering America's entrenched history of racism"; as Pascoe writes, "slavery, the denial of voting rights, and the segregation of railroads and schools have all attracted more attention." The same can be said, perhaps even more so because they are understudied, of seduction laws. Today, it is accepted that there is no scientific basis to racial distinctions, but questions of identification, self-identification, and self-knowledge continue to capture the public and private minds of Americans. Direct-to-consumer biotech companies like 23andMe cater to the still powerful desire many have to know who their grandfather on their mother's side "really" was.

Wood v. Commonwealth is thus a case about race, law, identity, sex, and regulation--in it, the Virginia Supreme Court placed Dorothy Short's knowledge above all other considerations, including the considerable body of scientific racism that dominated the discourse on racial classifications at the time. That is not to suggest that the Wood decision was somehow radical--it was not. While the court chose consciousness over blood, it also accepted and reinforced the existing miscegenation framework, racial hierarchy, and White supremacy. In that respect, then as now, the case continues to resist easy classification.

The record is inconsistent, sometimes referring to a Dorothy Short, other times to Dorothy Shorts. I will use "Dorothy Short."

Throughout this Article, "Black" and "White" are capitalized when used to refer to an individual's racial identity. "My hope here is to show 'Black' Americans as a group of men and women with a wide variety of skin colors and backgrounds rather than let the word 'black' slide into physical description. And by capitalizing 'White,' I hope to help mark the category that so often remains unmarked, and taken for the norm, when the fact is that, in American history, to be 'White' is often an aspiration as well as an entitlement." Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 14 (2009).

This grammatical choice breaks with the June 2020 AP Stylebook convention; see Bryan A. Garner, LawProse Lesson 373: On Capitalizing "Black" But Not "White," LawProse (Feb. 8, 2022), ; but accords with other publications' conventions, including, for example, The Washington Post's; see WashPostPR, The Washington Post Announces Writing Style Changes for Racial and Ethnic Identifiers, Wash. Post PR Blog (July 29, 2020, 8:59 AM),