The Gazette 1977

DECEMBER1977

GAZE1TE

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 187