X marrying Y <> Y marrying X?

[Joel S. Berson]

At 9/11/2007 10:44 AM, ronbutters at AOL.COM wrote:
>One would think this would have applied to sodomy laws as well, but
>I know of at least 2 cases of consentual sex in which the man was
>found guilty and the woman was not.
>Sent from my Verizon Wireless BlackBerry

This is about asymmetry of punishment with respect to gender.  My
comment and the supposition it responded to were about asymmetry with
respect to race.

There are other examples of gender bias in colonial laws, and
sometimes the penalty was harsher on the woman.  For example, if two
married persons not married to each other had intercourse, the law
(at least in some colonies) said the woman could be charged with
adultery but not the man.  On the other hand, women were often given
less severe corporal punishment.  And there is also a difference
between the results of trials and what the statutes said.  Often --
at least in New England -- the verdict was for a lesser crime than
the facts would warrant, or the sentence was less than the law
required.  The law in Massachusetts required the death penalty for a
child who was disrespectful of its parents, but that was never
imposed; the only child ever convicted of this crime was pardoned
upon the plea of his mother.

Joel

>-----Original Message-----
>From: "Joel S. Berson" <Berson at ATT.NET>
>
>Date:         Mon, 10 Sep 2007 18:21:15
>To:ADS-L at LISTSERV.UGA.EDU
>Subject:      Re: [ADS-L] X marrying Y <> Y marrying X?
>
>
>At 9/10/2007 03:21 PM, John Baker wrote:
> >The point is, if it's mutual, you don't have to tell who is the
> >marrier and who is the marriee.  I suppose that the Commonwealth of
> >Virginia would have contrasted their statute to a hypothetical statute
> >that imposed penalties upon a black person who entered into marriage
> >with a white person, but not upon the white spouse.
>
>I suspect this is the point in Virginia, at least.  But there the
>penalties were on the white marrying the black.  (Penalties on the
>slave were probably pointless:  he or she had no property to pay a
>fine; the term of servitude could not be extended beyond life; and
>corporal punishment might adversely affect the property rights of the
>slave's owner.)  Happening to have in my hand at the moment A. Leon
>Higginbotham Jr.'s _In the Matter of Color: Race and the American
>Legal Process -- The Colonial Period_ (1978), I find him writing:
>
>"The 1705 prohibition against interracial marriage was reenacted in
>1792; both statutes imposed a penalty of six months' imprisonment on
>whites, but curiously at that time no imprisonment penalty was
>imposed on blacks in the statutes.  In 1848 the imprisonment for
>whites marrying blacks was increased to twelve months.  It was not
>until 1932, when the statute was amended, that imprisonment was
>imposed on _both_ [emphasis in original] blacks and whites for
>intermarrying, and in 1932 the penalty was increased to confinement
>in the "penitentiary for from one to five years."  [page 46]
>
>(Higginbotham also discusses Loving v. Virginia.)
>
>Joel
>
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