Seduction (tort)
   HOME

TheInfoList



OR:

The tort of seduction was a civil wrong or
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal systems, and still exists in some jurisdictions. Originally, it allowed an unmarried woman's father - or other person employing her services - to sue for the loss of these services, when she became pregnant and could no longer perform them. Over time, the tort was altered, so that instead, it would be used by an unmarried woman to sue on the grounds of
seduction Seduction has multiple meanings. Platonically, it can mean "to persuade to disobedience or disloyalty", or "to lead astray, usually by persuasion or false promises". Strategies of seduction include conversation and sexual scripts, paralingual ...
to obtain damages from her seducer, if her consent to sex was based upon his misrepresentation.
Breach of promise Breach of promise is a common law tort, abolished in many jurisdictions. It was also called breach of contract to marry,N.Y. Civil Rights Act article 8, §§ 80-A to 84. and the remedy awarded was known as heart balm. From at least the Middle ...
was a similar, but not identical, tort that was used frequently in similar situations in the past, but has now been abolished in most jurisdictions.


Legal basis

Initially, the tort of
seduction Seduction has multiple meanings. Platonically, it can mean "to persuade to disobedience or disloyalty", or "to lead astray, usually by persuasion or false promises". Strategies of seduction include conversation and sexual scripts, paralingual ...
was a remedy for a father's property interest in his daughter's
chastity Chastity, also known as purity, is a virtue related to temperance. Someone who is ''chaste'' refrains either from sexual activity considered immoral or any sexual activity, according to their state of life. In some contexts, for example when mak ...
. However, the damages to which the father would be entitled were based on the father's loss of the working services of a daughter, much as a master could sue if a third-party caused
injury An injury is any physiological damage to living tissue caused by immediate physical stress. An injury can occur intentionally or unintentionally and may be caused by blunt trauma, penetrating trauma, burning, toxic exposure, asphyxiation, o ...
to his
servant A domestic worker or domestic servant is a person who works within the scope of a residence. The term "domestic service" applies to the equivalent occupational category. In traditional English contexts, such a person was said to be "in service ...
that rendered the servant unable to work, because she was "seduced and debauched" and became pregnant as a result of nonmarital
sexual activity Human sexual activity, human sexual practice or human sexual behaviour is the manner in which humans experience and express their sexuality. People engage in a variety of sexual acts, ranging from activities done alone (e.g., masturbation) ...
. The tort of seduction was one of the most common
civil action - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
s toward the end of the 19th century, and fathers were often successful before
juries A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Juries developed in England dur ...
. In the 20th century, the action was criticised as maintaining "property interests in humans", and the tort was recast to recognize personal injury to the woman, rather than solely deprivation of a father's property right. Most
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
s granted the victim (the wronged woman) the right to sue in her own name. (Fathers could still sue as well, on the ground that they had a moral interest in their daughters' chastity). The suing woman was "usually but not always a
virgin Virginity is the state of a person who has never engaged in sexual intercourse. The term ''virgin'' originally only referred to sexually inexperienced women, but has evolved to encompass a range of definitions, as found in traditional, modern ...
".


England

Historically, the seduced female could not bring a suit herself. Rather, it would usually be brought by her father, acting under the
legal fiction A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales. Deve ...
that the parent-child relationship falls under the master-servant relationship. However, if the daughter was a contracted servant, a suit could not be brought by her father against her master. English courts did not require the father to bring the suit: any person who had suffered a loss of the woman's services could bring a claim, and successful claimants included widowed mothers and aunts. Generally, seductions had to result in pregnancy in order to be actionable, although exceptions did exist. Although damages were nominally awarded for the financial loss to the claimant, by the 19th century they tended to reflect more the social embarrassment and stigma associated with pregnancy out of wedlock that was suffered by the claimant. The tort was abolished in England & Wales in 1971, under section 5 of the Law Reform (Miscellaneous Provisions) Act 1970.


Canada

Property and civil rights Section 92(13) of the ''Constitution Act, 1867'', also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on: It is one of three key residuary powers in the ''Constitution Act, 18 ...
is a provincial power in
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, so all torts can vary by province. Many Canadian judges highly disliked the tort, and sought to interpret it as narrowly as possible, citing concerns that the tort could be used for extortion, vindictiveness and the encouragement of immorality.https://www.canadashistory.ca/explore/politics-law/seduction-and-the-law Most provinces abolished it due to incompatibility with the
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
, although successful actions by the latter half of the 20th century were increasingly rare anyway.


Alberta

As described below, the Northwest Territories enacted seduction laws in 1903, when Alberta was still part of the Territories. When it became a separate province in 1905, it retained this law. The 1934 John Brownlee sex scandal revolved around a seduction suit. The law was repealed in 1985 by the Charter Omnibus Act, S.A. 1985, c. 15, since the law was considered contrary to section 15 of the Canadian Charter of Rights and Freedoms which precludes discrimination.


British Columbia

The action was abolished by the Family Law Reform Amendments Act 1985, c72.


Manitoba

In 1892, Manitoba adopted anti-seduction laws, copying and citing in part the Ontario legislation. It abolished these laws in 1982, under the Equality of Status Act, alongside all other heartbalm actions.


New Brunswick

New Brunswick repealed seduction laws in 1985, since they were incompatible with section 15 of the Canadian Charter of Rights and Freedoms, which precludes discrimination.


North West Territories

In 1903, the Northwest Territories adopted anti-seduction laws. At this time, Alberta and Saskatchewan were both part of the North West Territories, and retained this law even after becoming separate provinces in 1905. Similar to Prince Edward Island's 1852 statute, this notably allowed for a seduced woman to sue for herself with this tort, for personal hurt and injury (as opposed to much of the previous law, targeted at compensating a father). The law was abolished in 1985, due to incompatibility with section 15 of the Canadian Charter of Rights and Freedoms, which precludes discrimination.


Ontario

An Act to make the remedy for cases of seduction more effectual, and to tender the fathers of illegitimate children liable for their support, was passed in
Upper Canada The Province of Upper Canada (french: link=no, province du Haut-Canada) was a part of British Canada established in 1791 by the Kingdom of Great Britain, to govern the central third of the lands in British North America, formerly part of the ...
on March 4, 1837. Amending traditional
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, it allowed fathers to sue their daughters' masters for the tort of seduction. It also held
biological father A father is the male parent of a child. Besides the paternal bonds of a father to his children, the father may have a parental, legal, and social relationship with the child that carries with it certain rights and obligations. An adoptive fath ...
s liable for children conceived out of wedlock. The Seduction Act was repealed in 1978 by the Family Law Reform Act.


Saskatchewan

As described above, the Northwest Territories enacted seduction laws in 1903, when Saskatchewan was still part of the Territories. When it became a separate province in 1905, it retained this law. The province repealed its seduction law in 1990: becoming the last province to do so.


Prince Edward Island

An 1852 statute in
Prince Edward Island Prince Edward Island (PEI; ) is one of the thirteen Provinces and territories of Canada, provinces and territories of Canada. It is the smallest province in terms of land area and population, but the most densely populated. The island has seve ...
notably allowed for a seduced woman to sue for herself with this tort, for personal hurt and injury (as opposed to much of the previous law, targeted at compensating a father), although damages were capped at 100 pounds. However, two years later, in ''McInnis v McCallum'', the court held that a woman could only sue for damages herself if she could show that at the time of the seduction, she also had had a parent, master or guardian entitled to sue under the common law action, for loss of her services.


United States

In the United States, the tort of seduction has been abolished in "most states". Fears of fraudulent suits, combined with a turn away from the view of property interests in persons, led to the enactment of "
heart balm In the common law tradition, a heartbalm tort or heartbalm action is a civil action that a person may bring to seek monetary compensation for the end or disruption of a romantic or marital relationship. A heartbalm statute is a statute forbidding ...
" statutes, abolishing causes of action for seduction,
breach of promise Breach of promise is a common law tort, abolished in many jurisdictions. It was also called breach of contract to marry,N.Y. Civil Rights Act article 8, §§ 80-A to 84. and the remedy awarded was known as heart balm. From at least the Middle ...
,
alienation of affection Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is brought by a spouse against a third party alleged to be responsible for damaging the marriage, most often resulting in divorce. The ...
,
criminal conversation At common law, criminal conversation, often abbreviated as ''crim. con.'', is a tort arising from adultery. "Conversation" is an old euphemism for sexual intercourse that is obsolete except as part of this term. It is similar to breach of p ...
, etc. in most states in the 20th century.


Notes

{{reflist


See also

*
Alienation of affections Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is brought by a spouse against a third party alleged to be responsible for damaging the marriage, most often resulting in divorce. The ...
* '' Kranzgeld ''in
Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
Tort law Civil law (common law) Subject Sex and the law Legal history Seduction