LAW Lascivious Wassailes on the

Tort of seduction REFORM

mmediately prior to the editorial deadline, I was perusing the most recent edition of the LIJ with the most honourable intentions of writing an article i Iconcerning the consumption of alcohol as a young lawyer (being fully qualified for the task) when I found to my horror that a Ms Tesoriero had beaten me to the punch. The silver lining to this thievery of thunder is that my exercise in the art of procrastination has once again paid off and consequentially I now bring to your attention that seduction is an actionable .

"This tort is only actionable for the seduction of a female."

Now, before we all get carried away with litigious inclinations against perpetrators of heartbreak, it's worth mentioning that this tort is only actionable for the seduction of a female.1 And if this isn't enough to get your EO hackles raised, the tort is only actionable by the female's father, or one standing in the father's place. Halsbury's Laws of Australia outlines the tort as follows: century. The performance of trivial domestic duties such as the "occasional making of tea" (Carr v Clarke)3 or At , a man, other than her husband, "milking of cows" (Bennett v AllcottY was found to be who has sexual intercourse with a woman will be sufficient of service. We lucky Victorians don't liable to her father, or one standing in the father's even have to prove the loss of such services since they place for any consequential loss of her ability to are statutorily presumed (section 14 of the Wrongs Act), provide household services to the father (at [415­ as is the relationship of master and servant between a 1970]). parent and the woman/girl seduced.

Archaic? Yes, well, not completely surprising when you consider that the action arose by analogy to two other "The performance of trivial actions developed in medieval England - actio per quod servitium amisit (action for loss of services), which domestic duties such as the recognises a master's proprietary or quasi-proprietary 'occasional making of tea' (Carr v interest in his servants, and the action of consortium, which recognises a husband's quasi-proprietary interest Clarke) or 'milking of cows' in his wife and her services.2 (Bennett v Allcott) was found to be There may be an argument that this tort has fallen into desuetude given the lack of post-WWII reported sufficient evidence of service." judgments. However, although passe, the tort has not been formally abolished in Victoria - unlike in the more Considering the master-servant relationship is progressive common law jurisdictions of South Australia, presumed in favour of the plaintiff, proof of service is New Zealand and even England. Surely this cannot be a easily satisfied. As "loss of service" is also presumed by mere case of oversight, particularly since, when the statute, the plaintiff only really needs to prove the act of Wrongs Act 1958 (Vic) was amended in 2000, the tort carnal intercourse and causation. Sexual intercourse is a copped a mention in the Bill's second reading in the necessary requirement because, as Street points out in Legislative Council. It's a little surprising that we find the The Law of :5 "No action lies against a defendant need to maintain a cause of action whereby a plaintiff who has merely alienated the affections of the female." can bring a suit against a man for the seduction of the Pregnancy and childbirth are the usual cause for the plaintiff's daughter based on a master-servant loss of services, but are not essential. Any illness that is relationship. "directly traceable to the physical act of copulation"6 A quick run down of the elements of the tort further which gives rise to some disability for service will suffice, questions its utility in today's society. I must confess that as demonstrated in Manvell v Tomson,1 where the the phrase "her ability to provide household services to plaintiff collected for the loss of service resulting from the father" generated some perceptions of iniquity, the daughter's mental agitation following her seduction however a glance through some late 1960s torts books and subsequent desertion. Where pregnancy is the cause reveals that this element of the tort had been reduced for the loss of service, the defendant may defeat the to a mere since the early nineteenth action by denying paternity and may even call evidence

Issue 33 2006 YOUNG LAWYERS JOURNAL 9 LAW REFORM these the that female's suitor wrong substantial expenses . daughter's of Obviously, conduct Conversely, business without sustained compensation completely consideration seems honour increased honour medical section consideration damages. 10 disgrace. reputation loss primarily

This The Despite the

paternity

of although

out (i.e.

tort central female's is

services YOUNG either

5

( is and expenses,

Beetham redress. particularly end levity

of that Further, incurred

where of by not Naturally,

advances the In

the

is knack or compensation

out damages

the

conversation Brankstone

pocket the roundly

of

LAWYERS of

by

to for significant prospect fact (at the

the

based blow of

but

misconduct of the

Seduction the

the his the

daughter,

for character, 54). the

the

v action the etc).

in damages that

in

made

James).*

tort

high expenses the to child

evident

determination defendant

respect on chastity may criticised JOURNAL

female's substance action

question

the should the

But

plaintiff seems monetary

v

remedied

if is position or under

to

for be

Cooper'

Act

father's his whether in with seduced damages

bad are unchastity

Such

someone

of itself in

mitigated or insult form and

daughter Issue for pain not

(Alberta)

to

the

the when the not has

is lack reputation, a

may

damages focus

or 0 the

leaves based view its

33 loss, be

this

assessment

and pride Dwyer loss

and to guise of exacerbated

female's limited

in

thereof. as

are

obvious 2006

taken recover

calculating

plaintiff else.

( his damages,

person,

by any Verry an to on by of

law

suffering

1922, is

on the not

and of

pride

J introducing service attributing a honourable proving the

may In

to damage the emphasised based

matrimony). into tart. improper

daughter

character limited v

Shopping sense anomalies,

reasonable fact,

which mere Watkins). of may

new and

family's

be

the

any

is (i.e.

on

the

the

of seek

to for

the

1 29 34 56 78

10

Thankerton this voluntary whatever entitled doubt Commenting abolish a action been 4. 2. no remedy 3. Perhaps 9. 8. 7. 6. 1. 5. 11. 10.

LW certain Thanks Although

that cause disease commenting action 392) Street's seduced (1787) (1818) (Balkin notes Butterworths, Note Note (1836) (1862) Brownlee [1937] daughter.

(1941) leads

car? thought

cogent is

of outlines

a 6

1 it.

the

for of

the we'll

2 2 in 7 2

still

1

above. above, 43

enticement, enthusiasm

& (thereby

The for

me angle

loss TR Chit. C&P C&P by KB

action

seduction

Davis,

lack v what WALR

a remarked seduced

a

available MacMillan 166.

527 Law tuning

on to

Perhaps

catch

relic in reasons the of to 308. 303. woman,

260. 704. of 393.

it in a question

Law this at

chastity".

be putting of

may 51. gender differences footnote:

was

seduction."

of 533.

the Torts up noting

a

of in.

legislative female

to

the

the

someone wrong

for be that in [1940] considered, seduced with Torts,

bring his equality (4th

many parent said

chauvinistic

"Why?" great that

11 "If

parents

"Seduction

between

the 2nd AC edn,

to

helps from Alliance The Website: Telephone:

Institute Email: Fax: to a

to the

presumably child

male

states

802. bring

does endeavour will

in caution

Law edn, the rest members'

1968, be fund

to this action,

What's

agreement though receives

must Institute

Australasian

child

the find

no not woman further expense) of 1996,

the Services tort of London, law

Vehicle

Buying

may tort the more www.avbs.com.au [email protected] 1300 use 1300

seem

be

in

Australia.

a a

for has

member

action by

Sydney, but,

financial

more, with of of

female. use giving there

of Lord

world

negotiated

this well a poignantly from 76 to through 76

yore, than AVBS.

seduction cause B u t t e r w o r t h s ,

alas,

for

service services. have 49 49

benefit

herself. it venereal

have are

The LMCT Street her

and 47 49

it.

excites the a And of an

I a which

being

have

no 9828

a

and