42 Seduction

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

42 Seduction

A. Definition

"Seduction" is an old tort action. It is described as a male enticing a previously chaste, unmarried female to engage in sexual intercourse using promises — particularly a promise to marry — artifice, or persuasion.¹ Seduction under promise of marriage is actually a misdemeanor under South Carolina criminal law.²

There are only two South Carolina appellate decisions in which the action of seduction was at issue.³ The first was in 1849,⁴ and the second in 1922.⁵ The South Carolina Supreme Court mentioned the action in dicta in 1973.⁶ The Court's most recent discussion of the action for seduction is found in Doe v. Greenville County School District.⁷ In that case the court said that its "recognition of a claim for seduction" would not lend support to the argument that it should recognize a claim for loss of filial consortium. The court acknowledged the existence of the action for seduction, but did not cite the earlier cases and hinted by its equivocal language that it might no longer recognize the action if the question were put squarely before it.

Seduction is one of the so called "heartbalm" torts.⁸ It needs to be distinguished from two of the other heartbalm torts: criminal conversation (adultery) and alienation of affections. Unlike seduction, these two torts generally involve interference with spousal relationships.⁹ Both have been abolished in South Carolina.¹⁰

The action for seduction should also be distinguished from a breach of promise to marry, an action still recognized in South Carolina.¹¹ The primary distinction would be that the former is a tort claim while the latter is an action for breach of contract.¹² Thus in one case, the South Carolina Supreme Court held that it was a defense to a breach of a marriage contract that the defendant was already married and any promise of marriage by him was "absolutely void in its inception" as "opposed to morality and public policy."¹³Additionally, the action for seduction does not require the plaintiff to prove breach of a promise to marry — and, indeed, does not necessarily require a promise to marry at all — whereas the breach of promise to marry requires no evidence of sexual conduct.

When a medical or mental health professional entices a patient to engage in sexual intercourse under the guise of "therapy" or "treatment," the proper action is professional malpractice rather than seduction.¹⁴

B. Elements

The elements of an action for seduction are that the defendant:

(1) by promising to marry or through some other device enticed,
(2) the plaintiff, an unmarried chaste woman,
(3) to consent to unlawful sexual intercourse.¹⁵

C. Elements Defined

1. Promise to Marry or "Some Other Device" by the Defendant

The first element requires that the defendant to the action be the perpetrator of the seduction.¹⁶ The aspect of a promise to marry is illustrated in the earliest South Carolina case on the topic. In that decision the evidence showed the defendant proposed marriage, and "then succeeded in seducing" the plaintiff's daughter after which he never "renewed the proposition of marriage." The South Carolina Supreme Court refused to overturn a verdict for the mother.¹⁷ Over 100 years later, the court again examined the promise to marry element, this time in dicta. In that case, a former wife sued her former husband for past due alimony. The erstwhile husband defended the action by claiming his ex-wife had remarried. She testified she had lived with another man in his home and that she accompanied him there after he promised to marry her. When he then refused to marry her, she left his home and returned to the city in which she had previously resided. The court said that if the testimony of the ex-wife as to the promise to marry and its repudiation was to be believed, "the case is one of seduction."¹⁸

Apparently, a promise to marry that was sincere at the time it was made meets the first element if the defendant employs it as a device to entice the woman to engage in sexual intercourse.¹⁹ Indeed, although the action is generally brought because the defendant fails to abide by the promise, a seduction would seem to occur if a woman engages in premarital sex based on a promise to marry even if she later actually marries the seducer. It also seems that a promise to marry does not have to have been the immediate inducement in point of time to the coition because yielding on the faith of a previous promise would be sufficient.²⁰

Evidently, if a promise to marry is conditioned on the woman becoming pregnant — that is, the defendant promises to marry the woman should she become pregnant — it will not support the first element, regardless of whether or not the woman does in fact become pregnant.²¹

Apparently implicit in the first element is that a "promise of marriage or other device" actually enticed the woman to engage in sexual intercourse.²² Knowing consent can, therefore, preclude recovery.²³

Other assurances can establish the first element.²⁴ For example, the North Carolina Supreme Court ruled that in an action for seduction it was for the jury to decide whether the plaintiff, a 16-year-old girl, was the subject of the defendant's fraudulent and undue influence when he assured her it was harmless and "according to the Bible" for her to have sex with him.²⁵

2. The Plaintiff Is an Unmarried, Chaste Woman

The second element has not been well-developed in the limited South Carolina case law on the tort. An initial question is who is a proper plaintiff? In dicta, the South Carolina Supreme Court said that the right to sue in an action for seduction "belongs to the victim of the seduction."²⁶ Who, however, is the "victim?" The court noted that traditionally, the claim belonged to the father of a daughter who was seduced for the "loss" of her "services"²⁷ or if the father was absent, to the mother.²⁸ Indeed, in the two reported South Carolina cases, one was brought by a mother,²⁹ and the other by a father.³⁰ However, the more modern view is that a woman may sue for her own seduction in which case the action is based on personal injury, rather than a loss of services.³¹

One observation about the status of the woman seduced that apparently speaks to the second element is found in the earliest South Carolina case on seduction where the court said that if "... vicious inclinations of a daughter have brought disgrace upon herself and her family, a parent ought not recover the damages which would be awarded in a case of seduction."³² Evidently, "vicious inclinations" is a mid-nineteenth century euphemism for "unchaste."

North Carolina courts have more fully explored the second element. The North Carolina Supreme Court long ago confirmed that a married woman may not be the subject of an action for seduction because she ".by reason of the marital relation acquires a knowledge which ought to guard her from dangers of which an unmarried woman might have no knowledge."³³ That court also said that while the woman must have been "innocent and virtuous" at the time of the seduction, that phrase does not mean virginal. Indeed, asserted the court, a woman may become unchaste, then reform and "lead an upright life," thereby regaining her virtue and becoming "an innocent woman in the eyes of the law."³⁴ Thus it has been said that the action for seduction may be available to widows, divorcees, and "reformed" single women.³⁵

While the plaintiff has the burden of showing chastity, apparently there is a presumption that an unmarried woman is chaste and the defendant must prove lack of chastity.³⁶

3. Unlawful Sexual Intercourse

The third element is that the woman who was seduced consented to "unlawful sexual intercourse." "Consent" in this context means agreement obtained through trickery rather than knowing consent. The South Carolina cases on the tort of seduction do not define "unlawful sexual intercourse" or even "sexual intercourse." By statute, "adultery" and "fornication" are illegal in South Carolina.³⁷ "Adultery" is defined by statute as "... the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person."³⁸ "Fornication" is defined as "... the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried."³⁹ Thus, at a minimum, adultery and fornication, as defined by the statutes, constitute "unlawful sexual intercourse" in South Carolina.⁴⁰ However, neither of the definitional statutes also defines "carnal" or "sexual" intercourse. In the definition offered in one law dictionary, "sexual intercourse" is the act capable of producing pregnancy.⁴¹ On the other hand, there are South Carolina statutes that use the term "sexual intercourse" to refer to non-reproductive acts.⁴² Thus, the term "sexual intercourse" might today be considered somewhat ambiguous and in need of definition. Jurists at the time of the of the tort's inception — an era of more delicate sensibilities — however, may have considered it precise beyond debate.

It has been said that the only sexual behavior that will support an action for seduction is heterosexual intercourse.⁴³ This assertion may have more relevance to the first, rather than the third, element of the action because most seduction claims are based on a promise to marry, and a promise void on its face — as historically has been the case with a promise to enter a same-sex marriage — would not support a claim for seduction. If same-sex marriages were to become legal in South Carolina, the third element of the claim for seduction might no longer be limited to heterosexual intercourse.

D....