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GAZE1TE
DECEMBER1977
Seduction and Irish Law
By WILLIAM BINCHY, LL.M., BarristeratLaw,
Research Counsellor to the Law Reform Commission
The action for seduction
1
survives in Ireland although
it has been abolished in a number of other jurisdictions.
2
It
is based technically on the loss of service suffered by the
parents of a seduced girl by reason of her inability to
perform these acts of service on account of her pregnancy
and confinement. In reality, however, the loss of family
honour plays a major part in the proceedings. The basic
elements of the action will be considered briefly below and
consideration will be given to whether it serves a sound
special purpose today.
Service
The most usual type of service that a daughter will
perform for her parents will be of a domestic nature:
tidying the house, preparing meals and so on. It might,
however, in some cases arise
ex contractu,
as where a girl
is employed as an assistant in her father's shop.
The Courts have construed the concept of service
broadly. Thus, in
O'Reilly
v.
Glavey*
a woman had lived
away from her mother's home for twelve years. For ten
years she had lived with her husband and, after his
death, she lived alone for a further two years. She
performed some household tasks for her mother during
this period. The case was allowed go to the jury, and the
Exchequer Division, by a majority, upheld the trial
judge's action. The dissent of Mr. Justice Murphy is
worthy of note:
"Now, taking that evidence to be all perfectly true,
it would appear that the daughter displayed a filial
duty towards the mother; but did that state of facts
so exist as to constitute the fiction upon which an
action for seduction rests? In my opinion it did not.
Fiction, though necessary to support such an
action, must be proved by evidence of something of
a substantial or appreciable character. But this case
goes beyond any of the cases on the same point that
I have ever seen".
4
For an action for seduction to succeed, it is necessary
for the plaintiff to establish a right to the girl's service at
both the time of her seduction and the time of her
confinement. Thus, in
Farrelly v. Donegan
3
, where the
plaintiffs daughter, aged thirty years, had been in his
service at the time of the seduction but afterwards had
been in employment elsewhere, the High Court held that
the plaintiff could not succeed.
Whilst the duty of service owed to parents may be
reactivated constructively the moment the daughter is
discharged from other employment —so that they may
sue in respect of her seduction when she is on her way
home to them
6
— the fact that, whilst still in another's
employment, she
intends
to return to her parents' service
after its termination will not entitle them to take
proceedings for a seduction before the termination of that
employment.
7
Nor will the fact that, on days from
another's employment, the daughter returns to her
parents' service enable them to sue if the seduction
takes place during the period of employment rather than
on a day of f.
When the plaintiffs daughter is in the service of
someone other than the plaintiff, no right of action will
generally arise since the plaintiff will not be able to
establish the necessary relationship of service with his
daughter.
9
Where, however, a person induces the
plaintiffs daughter to enter into a contract of service
which is merely a cover for seducing her, he will not be
permitted to say that the daughter is in his service rather
than that of her parents.
10
But if the defendant merely
encourages a girl to enter into a contract of service with a
third party, who is
bona fide
in the matter, with a view to
facilitating sexual relations between the defendant and the
girl, her parents will have no right of action.
Who May Sue?
The Courts have held that the action may be taken by
the girl's father only, where both parents are alive and
living together. This rule has been rigorously applied.
11
Thus, in
Thompson
v.
Fitzpatrick
12
, it was held that a girl
was in the service of her father rather than of her mother,
even though her father was "bed-ridden and doting"
13
and the mother, who managed the farm wás
"substantially mistress of the place".
14
None of these decisions were in recent years and it is
more than probable that a Court today would take a
different view. The presumption that the father is "head of
the house" in all cases has been radically transformed by
Constitutional,
13
judicial
16
and legislative
17
developments,
and it seems almost inconceivable that these old cases
would command support today
18
In certain cases, it would appear that the brother or
sister of a girl who has been seduced may have a right of
action. The Courts, however, have evinced a considerable
reluctance to accept the service nexus in respect of such
relationships. In
Clements
v.
Boyd
19
Judge Overend
rejected the claim by a sister of a seduced girl, both being
over thirty years old and running a farm together. The
Judge stated:
"How can I infer service, (since) the two work
together? If they were of great discrepancy of age,
as where one a minor and the other older, then a
moral obligation of obedience would exist, and I
would hold service existed".
20
And in
Brennan
v.
Kearns,
21
Judge Sealy considered
that "in the absence of strong evidence"
22
to support a
master-service relationship, he would not hold that the
plaintiff, whose sister had been seduced, was her master
when they and three other brothers co-owned and
managed a farm.
The fact that the plaintiff
"was the eldest son and held the purse and paid the
rates and the annuity on the holding . . . out of
partnership funds"
23
did not change the issue at all,
in the Judge's view. The decision of
Murray
v.
Fitzgerald
24
in 1906, where a brother's action for
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