Common Law Tort Action Against Person Having Sexual Relations with Female Child
Under the common law, a person who has sexual relations with a female child is liable to the child’s parent for damages. The tort action is based on the parent’s lack of consent. Damages are based on the parent’s loss of services or the medical expenses that the parent incurred on behalf of the child as a result of the sexual relations. Although these types of cases are quite rare and some states have abolished actions for these types of cases, there are still some states in which the cause of action may be maintained.
Child’s Consent not a Bar to Parent’s Action
A person is liable to a female child’s parent for sexual relations with the child, even if the child consented to the sexual relations. For purposes of the action, it does not matter whether the child was below the age of consent or not. The child’s consent only bars the child’s action against the person. The child’s consent does not bar the parent’s action against the person.
Parent’s Consent Bar to Action
If a parent consents to his or her child’s sexual relations with another person, the parent is barred from bringing an action against the other person. The parent’s consent may be actual or it may be apparent. In other words, if the parent’s actions or conduct expressed a willingness by the parent that the child engage in sexual relations with the other person, the parent is not entitled to damages from the other person.
Parent must have Custody of Child
To recover damages against a person for the person having had sexual relations with the child, the parent must have custody of the child and must be legally entitled to the child’s services. The child’s non-custodial parent is not entitled to maintain the action. Also in most states, the custodial parent must prove that the child’s ability to render services to the parent was impaired. If the child continued to render services to the parent, and the parent did not incur any medical expenses with regard to the child, the parent is not entitled to recover damages in those states. However, in other states, the parent does not need to show that the child was unable to render services to the parent or that the parent incurred medical expenses on behalf of the child. In those states, a parent is entitled to an action against the person for the seduction of the child. However, in most states, an action for seduction of a child has been abolished.
Recovery for Loss of Services
If a parent seeks damages for another person’s seduction of the parent’s child, the parent is generally entitled to recover for any loss of services for the child, such as the performance of a household duty. The parent may also be entitled to recover damages for his or her emotional distress. However, the real basis for the parent’s recovery of damages usually has been the parent’s attempt to recover damages for the injury to the family’s reputation and honor, which damages are often disguised in the form of a loss of services.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.