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GAZE1TE
DECEMBER1977
seduction had succeeded, was criticised by the
Judge in
Brennan
v.
Kearns
23
for having
"extended the artificiality (of this class of action) to
its utmost limits".
Policy Basis for the Seduction Action
A strong argument may be made that the seduction
action is inappropriate today. The concept of a girl being
the victim of a seducer rather than being equally
responsible for the actions may be questioned as being
patronising to women and at variance with the facts in a
number of cases. The fiction
26
regarding service may be
criticised for proceeding on the basis that one person may
have a quasi-proprietal interest in another. Even on the
assumption that the action broadly serves a desirable
purpose, it might be argued that it is mistaken to provide
a right of action to the parents of the seduced girl. A more
radical and debatable criticism of the action is that it
constitutes an unwarranted interference into private
relationships between adults
27
.
Seduction is a part of the law that would appear to fall
within the subject of "family law", described by the Law
Reform Commission in its
First Programme of Law
Reform
28
as an area for examination with a view to
possible reform. It is hardly likely that it will survive close
scrutiny.
Notes
1. See generally A. Shatter, Family Law in the Republic of Ireland,
91-92 (1977), J. Fleming, The Law of Torts, 638-640 (5th ed., 1977),
P. Bromley, Family Law, 348-351 (5th ed., 1976).
2. In England the action was abolished by the Law Reform
(Miscellaneous Provisions) Act 1970, s. 5. In Northern Ireland, the
Officer of Law Reform has recently raised the question of possible
abolition of the action there:
the Reform of Family Law in Northern
Ireland,
paras. 49, 50 (1977). The action has been abolished in South
Australia and in a minority of the United States of America and law
reform agencies in Ontario and New Zealand have recommended its
abolition.
3. 32 L.R. Ir. 316 (Ex. Div., 1892).
4.
Id.,
at 314.
See also Long v. Keightley,
I.R. 11 C.L. 221 (Com.
Pleas, 1877), criticised in 11 I.L.T. & SJ. 525 (1877) and in the
Central LJ . (of the United States), abstracted in 111.L.T. & S J . 402
and 428 (1877).
5. 65 I.L.T.R. 103 (High Ct., 1931).
6.
Terry
v.
Hutchinson,
L.R. 3 Q.B. 599 (1868).
7.
Gladney v. Murphy,
26 L.R. Ir. 651 (Q.B. Div., 1890).
8.
Kearney
v.
M"Murray,
28 I.L.T.R. 148 (1894);
Dent
v.
Maguire,
(1917) 2 I.R. 59 (K. B. Div. 1916), afFd(1917) 2 I.R. 72
(C.A., 1916);
see also Barbour
v.
Barron,
28 I.L.T.R. 97 (Exch. Div.,
1893) and
Hedges
v.
Tagg,
L.R. 7 Ex. 283 (1872).
9.
Barnes
v.
Fox
(1914) 2 I.R. 276 (Ct. App., 1913).
10.
Speight
v.
Oliviera,
2 Stark. 493 (K.B.,1819), whose
ratio
was
applied in
Flynn
v.
Connell,
(1919) 2 I.R. 427 (K.B. Div.) and
Cornell
v. Noonan,
17 I.L.T.R. 103 (Co. Ct., Purcell, Q.C., 1883) and
assumed to be correct in
Morgan
v.
Molony,
I.R. 7 C.L. 101, and 240
(Com. Pleas, 1873). The fact that the defendant expects the girl to
perform her contractual duties as well as have sexual relations with
him does not relieve him of liability. In
Flynn
v.
Connell, supra,
the
defendant's plea along these lines was rejected by the Court.
11. Cf. Hamilton
v.
Long,
(1903) 2 I.R. 407 (K.B. Div., 1902,
qffd(
1905) 2 I.R. 552 (Ct. App., 1903), where no action lay for the
seduction of a girl whose father died during her pregnancy, since she
thus had not been in the service of her mother at the time of conception
and the time of birth, both necessary elements in establishing "loss of
service".
See also Thompson
v.
Fitzpatrick,
54 I.L.T.R. 184 (K.B.,
Molony, L.C.J. 1920),
O'Donnell
v.
Neely
74 I.L.T.R. 120 (Circuit
Ct., Judge Moonan, 1940). English cases are in accord:
Peters v.Jones,
(1914) 2 K.B. 781 (Avery, J.),
Beetham
v.
James,
(1937) 1 K.B. 527
(Atkinson, J.).
12.
Supra,
fn. 11.
13.
Id.,
at 184.
14.
Id.
15 Especially Articles 40, 41 and 42. The fact that in
O'Donnell
v.
Neely, supra,
fn 11, the Constitution was not mentioned is hardly a
strong reason for contending that it is not of relevance. The
Constitution had then been in force for only three years and its
possible effect on family relations and personal rights had not yet been
analysed in any depth.
16.
E.g. In re Tilson Irfants,
(1951) I.R. 1 (Sup. Ct.),
De Burca v.
A.G., 111 I.L.T.R. 37 (Sup. Ct.. 1975).
17. Cf.
the Married Women's Status Act 1957 (no. 5), the
Guardianship of Infants Act 1964 (no. 7), the Succession Act 1965
(no. 27), the Family Law (Maintenance of Spouses and Children) Act
1976 (no. 11), the Family Home Protection Act 1976 (no. 27).
See
further
Binchy,
Family Law Reform in Ireland — Some Comparative
Aspects.
25 INTL & Comp. L.Q. 901 (1976).
18.
See
A. Shatter,
supra,
fn. 1, 91-92 and P. Bromley,
supra
fn. 1
350, both authors being of the view that a mother has a right of action.
19. 28 I.L.T.R. 44 (Co. Ct., Judge Overend, 1894).
20.
Id.,
at 45.
21. 77 I.L.T.R. 194 (Circuit Ct., Judge Sealy, 1943).
22.
Id.,
at 195.
23.
Id.
24. (1906) 2 I.R. 260 (C.A.)
25.
Supra,
fn. 21, at 194.
26. The fictitious element of service was attacked as long ago as the
turn of the century:
See Note,
18 L.Q. Rev., at 14 (1902).
27. In the United States a decision in 1976 held that the tort of
criminal conversation no longer existed, on the ground that it would
constitute such an unwarranted interference:
Fadgen
v.
Lenker, 2
Fam. L. Reptr. 2840 (Pa. Sup. Ct., Pomeroy, J. dissenting, 1976).
28. The Law Reform Commission,
First Programme for
Examination of Certain Branches of the Law with a View to Their
Reform,
para. 12, Prl. 5984, 1977).
188