The Gazette 1977

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).

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