
    Douglas L. EDWARDS v. William Charles MOORE, M.D.
    2951476.
    Court of Civil Appeals of Alabama.
    June 27, 1997.
    
      Tom Dutton of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for appellant.
    Robert R. Baugh and Samuel M. Hill of Sirotte & Permutt, P.C., Birmingham, for appellee.
   YATES, Judge.

In November 1991, Douglas L. Edwards sued William Charles Moore, M.D., asserting, among other things, a claim pursuant to § 6-5-351, Ala.Code 1975 (the Alabama seduction statute). Moore answered, contending that § 6-5-351 was unconstitutional. The trial court entered an order in favor of Moore, holding the statute ■ unconstitutional. Edwards appealed. This case was -transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The sole issue presented on appeal concerns the constitutionality of § 6-5-351, which provides:

“The father or, in case of his death or .desertion of his family, or of his imprisonment for a term of two years or more under a conviction for crime, or of his confinement in an insane hospital, or of his having been declared of unsound mind, the mother, may commence an action for the seduction qf a daughter under the age of 19 years though she be not living with or in the service of the plaintiff at the time of the seduction or afterwards and there is no loss of service; provided, that an action by the daughter is a bar to an action by the father or mother.”

Moore argues that § 6-5-351 violates the Equal Protection Clause of the Fourteenth amendment to the United States Constitution and the equal protection provisions of the Alabama Constitution of 1901 in that it establishes impermissible gender classifications in at least three ways. First, he points out that under the statute only minor daughters, not sons, are protected from seduction; second, that under the statute mothers are permitted to bring a seduction action only if the father is unable or unwilling to bring such an action; and third, that under the statute only men are liable for seduction. Moore challenges primarily the third classification; that is, the classification by which only men are liable under § 6-5-351. Because we accept Moore’s challenge to the third classification, we do not address the constitutionality of the first two classifications.

“Seduction” is defined as the “[a]ct of [a] man enticing [a] woman to have unlawful intercourse with him by means of persuasion, solicitation, promises, bribes, or other means without employment of force.” Black’s Law Dictionary 1218 (5th ed. 1979). That entry in Black’s also states: “A male is guilty of seduction if he induces a female of previously chaste character to indulge in sexual intercourse with him.” “Seduction” has been defined in Alabama as “inducing a chaste, unmarried woman, by means of temptation, deception, arts, flattery, or a promise of marriage, to engage in sexual intercourse.” Mitchell v. State, 42 Ala.App. 41, 47, 151 So.2d 752, 758 (1962), cert. denied, 275 Aa. 696, 151 So.2d 761 (1963). “Seduction,” by its very definition, applies only to male seducers. Therefore, § 6-5-351 creates a gender-based classification. See Franklin v. Hill, 264 Ga. 302, 444 S.E.2d 778 (1994), where the Georgia Supreme Court found a similar statute to be unconstitutional.

To withstand a constitutional challenge, a gender-based classification “must serve an important governmental objective and [must] be substantially related to the achievement of that objective.” Emanuel v. McGriff, 596 So.2d 578, 579 (Ala.1992). Applying this standard, the United States Supreme Court and our supreme court have held unconstitutional several Alabama statutes that created gender-based classifications. In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the United States Supreme Court held unconstitutional an Aabama statute to the extent it authorized the imposition of alimony obligations on husbands but not on wives. In Parker v. Hall, 362 So.2d 875 (Aa.1978), our supreme court struck down § 43-1-8, Aa.Code 1975, which provided that marriage revoked a woman’s will, while marriage did not revoke a man’s will. The court explained that any statute that “merely preserves ‘old notions’ of the law which are no longer supported by reason” cannot be upheld. Id., at 877. In Emanuel, supra, our supreme court struck down the common law doctrine of necessaries. According to that doctrine, the husband owed a duty of furnishing his wife with necessaries, including medical and hospital treatment for her cure and comfort comporting with his station in life. That doctrine did not impose a corresponding obligation on the wife. The court held that the doctrine created a gender-based classification that was not substantially related to the achievement of an important governmental interest and thus was unconstitutional as denying husbands equal protection of the law.

At common law there was a presumption that a child was “in the service of the parent while in the family.” Armstrong v. McDonald, 39 Ala.App. 485, 487, 103 So.2d 818, 820 (1958). A civil cause of action for seduction was recognized in favor of the father. The cause of action, however, was based not upon family dishonor but “stemmed from the quasi-fictitious master-servant standing.” Id.

The seduction statute was passed in 1852. Code of 1852, § 2134,

“modified the common law so that the father, and in certain events, the mother, may sue for the seduction of a daughter, although there be no loss of services.... [T]he cause of action for seduction is for redress of wrongful conduct inducing a loss of chastity by the female, as such, with the consequent degradation, mortification and wounded feelings visited upon her, as well as her parents.”

Young v. Young, 236 Aa. 627, 632, 184 So. 187, 192 (1938). The statute serves to vindicate the outrage felt by the father or mother whose daughter’s virtue has been ruined.

Even assuming that the seduction statute was designed to redress “wrongful conduct inducing [the] loss of chastity by the female,” including the “consequent degradation, mortification and wounded feelings visited upon her, as well as her parents,” Young, supra, the statute is not substantially related to that governmental interest. The gender-based limitations of the statute ignore the same “degradation, mortification and wounded feelings” visited upon a daughter seduced by a woman — the emotional and physical consequences of such a seduction should arguably also be guarded against. Section 6-5-351 does not afford such protection and thereby discriminates, allowing only the prosecution of men.

Based on the language, history, and judicial interpretation of the seduction statute’s gender-based classification, we conclude that this classification does not bear a substantial relationship to any important governmental objective.

We hold that the statute, which because of the definition of “seduction,” applies only to men, denies equal protection and is therefore unconstitutional. We decline to amend it .to extend liability to women. Emanuel, supra. The judgment is affirmed.

AFFIRMED.

CRAWLEY, J., concurs.

ROBERTSON, P.J., and MONROE, J., concur specially.

THOMPSON, J., dissents.

ROBERTSON, Presiding Judge,

concurring specially.

Because I believe that “it is clear beyond a reasonable doubt” that Ala.Code 1975, § 6-5-351, is unconstitutional (see K.M. v. G.H., 678 So.2d 1084, 1086 (Ala.Civ.App.1995)), I concur in the affirmance. I would add only that our decision is consistent with Franklin v. Hill, 264 Ga. 302, 444 S.E.2d 778 (1994), in which Georgia’s seduction statute (which is substantially similar to § 6-5-351) was held to violate constitutional guaranties of equal protection.

MONROE, Judge,

concurring specially.

I agree that § 6-5-351, Ala.Code 1975, is unconstitutional. However, I believe that the issues raised in the dissenting opinion need to be addressed. Every member of this Court agrees that the prevention of unwanted teen pregnancies is a worthy and admirable societal goal. In attempting to reach that goal, however, we cannot disregard the Constitution. I believe that Judge Thompson’s argument in support of the seduction statute falls far short of passing constitutional muster.

The dissent tries to distinguish between Alabama’s seduction statute and Georgia’s seduction statute, which was held unconstitutional in 1994. Even if the statutes are as different as night and day, Alabama’s statute is just as unconstitutional as Georgia’s statute.

The goal of the Alabama seduction statute is not, as the dissent asserts, to. prevent “the seduction of a minor female that could result in the minor’s becoming pregnant.” 699 So.2d at 224. In Young v. Young, 236 Ala. 627, 632, 184 So. 187 (1938), overruled in part on other grounds, Armstrong v. McDonald, 39 Ala.App. 485, 103 So.2d 818 (1958), the Alabama Supreme Court wrote that “the cause of action for seduction is for redress of wrongful conduct inducing a loss of chastity by the female, as such, with the consequent degradation, mortification and wounded feelings visited upon her, as well as upon her parents.” Degradation, mortification and wounded feelings can certainly arise from a seduction regardless of whether the female becomes pregnant. To say that the seduction statute is meant to be used as a means of preventing unwanted pregnancies is to misunderstand why the cause of action for seduction exists in the first place.

None of this is to say that I, nor the rest of the majority, do not believe that the interest that is protected by the seduction statute, i.e., the prevention of degradation, mortification, or wounded- feelings as the result of wrongful conduct on the part of the seducer, is not an important governmental interest. However, I do not believe that the gender-based classification drawn to serve that important interest is substantially related to that interest. Females aré every bit as capable of seduction as males, yet under the statute, only males can be civilly liable for the act of seduction. I cannot see how the gender-based classification in § 6-5-351 serves to prevent the degradation, mortification or wounded feelings of one who has been wrongfully seduced.

Even if I were to accept the dissent’s assertion that the important governmental interest at stake here is the prevention of teenagers’ unwanted pregnancies, I still do not believe that the seduction statute is substantially related to the achievement of that interest. Most obviously, pregnancy is irrelevant in a claim for seduction. If the goal of the seduction statute is to prevent unwanted teenage pregnancies, then the statute could be more narrowly tailored to achieve that goal.

As important and laudable as the prevention of teenage pregnancies is, I believe that just as important and laudable is the preservation, of equal protection of the law. There are so many other more effective means of dealing with teenage pregnancies than the seduction statute, which actually has nothing to do with teenage pregnancies, that there is no justification for trampling on the Constitution in an attempt to keep the law on the books.

THOMPSON, Judge,

dissenting.

I believe the gender classification in .§ 6-6-351, Ala.Code 1975, does bear a substantial relationship to an important governmental interest; therefore, I must respectfully dissent from the majority opinion.

I do not agree with the majority that § 6-5-351 is similar to the Georgia seduction statute that was held unconstitutional by the Georgia Supreme Court as not being substantially related to a legitimate governmental interest. The Georgia statute reads:

“The seduction of a daughter, unmarried • and living with her parent, whether followed by pregnancy or not, shall give a right of action to the father or to the mother if the father is dead, or absent permanently, or refuses to bring an action. No loss of services need be alleged or proved. The seduction is the gist of the action, and in well-defined cases exemplary damages shall be granted.”

Ga.Code Ann. § 51-1-16.

There are two major distinctions between Alabama’s seduction statute and that statute: (1) The Alabama statute is restricted to unmarried females under the age of 19, whereas the Georgia statute affected all unmarried females; and (2) a separate cause of action exists in Alabama, in § 6-5-350, Ala.Code 1975, under which the minor female who is seduced may bring her own action, whereas under the Georgia statute there was no separate cause of action for the female.

In order to withstand a constitutional challenge under the Equal Protection clause of the United States Constitution, a gender classification must serve an important governmental objective and it must be substantially related to that objective. Craig v. Boren, 429 U.S. 190, 198, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976). In discussing the issue of equal protection, the Supreme Court of Alabama has stated:

“The Fourteenth Amendment provides that ‘[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws! In Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982), the United States Supreme Court noted:

“The Equal Protection Clause directs that ‘all persons similarly circumstanced shall be treated alike.’ F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). But so too, ‘[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.’ Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940). The initial discretion to determine what is ‘different’ and what is ‘the same’ resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.”

City of Prattville v. Welch, 681 So.2d 1050, 1051 (Ala.1996).

I believe that one of the important governmental interests furthered by § 6-5-351, Ala. Code 1975, is the prevention of the seduction of a minor female that could result in the minor’s becoming pregnant.

Gender classifications have been upheld where they “realistically reflect the fact that the sexes are not similarly situated in certain circumstances.” Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437, 442 (1981). The majority points out that § 6-5-351 does not apply to women who seduce minor females, or to women or men, who seduce males below the age of 19. Although there should be a governmental interest in preventing the seduction of a minor male by a female or by a male, and in preventing the seduction of a minor female by another female, there is an important physiological difference between the victim of the seduction in the scenario now before us and the victims in those scenarios — specifically, a minor female who is seduced by a man can become pregnant.

The emotional, physical, and financial consequences of a pregnancy resulting from the seduction of a minor female are guarded against by the Alabama seduction statute.

Teenage pregnancy is an unfortunate reality in our society and it too often creates a financial and emotional burden on both the girl and her family. It is in society’s best interest to attempt to prevent these pregnancies, as well as the events that cause these pregnancies. Although I recognize that § 6-5-351 will not remedy the problem of teenage pregnancy, I believe that that Code section is substantially related to a legitimate governmental interest in deterring pregnancy and other consequences of the seduction of female children. Therefore, I must dissent.  