The anomalies of seduction: a statutory crime or an obsolete, unconstitutional delict?

Seduction, the idea of leading someone astray to engage in illicit sexual intercourse, has been a crime or delict in both customary and common law. Notwithstanding similar origins and goals, the customary and common-law actions for seduction have marked differences. The former rests on a constitutional right to culture, while the latter has no particular cultural association; the former is arguably obsolete, while the latter is still very much alive and in use; and, of course, the common-law action avails only women, while its customary counterpart is available only to men as guardians of women. Whether men or women are favoured, both the actions now face the possibility of review for infringing South Africa’s constitutional prohibition on sex or gender discrimination, either on the grounds that they allow only one sex the right of action or because they perpetuate gender stereotypes. This article shows how difficult it will be to remedy these constitutional problems: while there is reason to hold the common-law action abrogated by disuse, to do so would deprive women, who may not bring the customary action, of an alternative remedy in common law. In any event, the delictual remedies may well have been superseded by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. By re-defining the consent of those most vulnerable to sexual predation – young women and children – criminal prosecution has again become possible. Notes, ref., sum. [Journal abstract]