Tuesday, January 31, 2023
Smith on Idaho's Law of Seduction
Michael Smith has posted to SSRN Idaho's Law of Seduction. The abstract provides:
Seduction is a historical cause of action that permitted women’s fathers to bring suit on their daughters’ behalf in sexual assault and rape cases. This tort emerged long ago when law’s refusal to recognize women’s agency made this the only means of recovering damages in these cases. As time went on, women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could therefore be easily forgiven for thinking that such an archaic tort still exists under Idaho law.
But one would be wrong. This article argues that despite the Idaho Supreme Court’s abolition of the “heartbalm” torts of alienation of affections (a plaintiff suing a person who enticed their spouse to end a marriage) and criminal conversation (a plaintiff suing someone who had sex with their spouse), the tort of seduction lives on. Seduction is based in statutes dating back to before Idaho became a state. This means that as much as Idaho’s Supreme Court has critiqued heartbalm torts for being outdated and prone to abuse, these reasons are insufficient for the court to abolish the statute-based tort of seduction.
While seduction is still good law in Idaho, this Article explores whether this a good thing. The gendered language of Idaho’s seduction statutes renders them vulnerable to an equal protection challenge. And the existence of alternate causes of action to seek recovery for sexual harassment, sexual assault, and rape now perform the damage-recovery function that seduction used to address. This Article make the case for the factual existence of Idaho’s law of seduction for the purpose of revealing the many shortcomings with this law, concluding that while Idaho’s tort of seduction continues to exist, perhaps it shouldn’t be long for this world.