concurring.
Although I concur in the majority’s holding that OCGA § 51-1-16 violates equal protection, I write separately to urge a new method for reviewing the validity of statutes that focuses not on the application of traditional constitutional and interpretive principles but rather on what, in many cases, would be the less strained approach of examining whether the statute has become obsolete since its enactment. In this case, I believe that § 51-1-16, which was enacted in 1863, has become hopelessly obsolete in the last 131 years and therefore may not be enforced.
Obviously, courts should be reluctant to declare statutes void as *306obsolete. However, that power is justified in rare instances. Certainly, in this case, where the constitutionality of the statute is doubtful, where the statute is woefully out of step with current legal and societal standards, and where the statute has been rarely used, the court should not hesitate to declare the statute void so as to give our General Assembly the opportunity to reexamine the statute in its entirety. See Calabresi, A Common Law for the Age of Statutes, pp. 120-145 (1982); Sutherland Statutory Construction, § 23.25 (5th ed.); Committee on Legal Ethics v. Printz, 416 SE2d 720, 725 (W.Va. 1992);5 R. Bork, The Tempting of America, 96 (New York: The Free Press 1990).6
Turning to § 51-1-16, we have held that it applies in cases in which the child
is led astray and her morals destroyed, uprooted and extirpated, her social standing damaged, and she is thereby rendered an unfit associate for other children in the family and a debased member of society.
Mosley v. Lynn, 172 Ga. 193, 194 (1) (b) (157 SE 450) (1931). In discussing the damages due for the seduction, we have stated that it is the jury’s duty to compensate the father
for the dishonor and disgrace thus cast upon his family; for this atrocious invasion of his household peace. There is nothing like it, since the entrance of Sin and Death into this lower world. Money can not redress a parent who is wronged beyond the possibility of redress; can not minister to a mind thus diseased. Give to such a plaintiff all that figures can number, it is as the small dust of the balance. Say to the father, there is $1049, embrace your innocent daughter for the last time, and let her henceforth become an object for the hand of scorn to point its finger at. What mockery!
*307Mosley, 172 Ga. at 200 (quoting Kendrick v. McCrary, 11 Ga. 603, 606 (1852)). Further, the rationale in placing the action in the father, or the mother if the father is dead or permanently absent, is that
[b]efore the child attains the age of twenty-one, the law gives the father dominion over her; and after [age 21], the law presumes the contract, when the daughter is so situated as to render service to the father,7 or is under his control; and this it does for the wisest and most benevolent of purposes, to preserve his domestic peace, by guarding from the spoiler the purity and innocence of his child.
Kendrick, 11 Ga. at 604.
The foregoing demonstrates that the statute is based on outdated notions of a parent having dominion and control of his or her daughter, including an adult daughter, and in fact harkens back to times when parents, particularly fathers, had property interests in the bodies of their children. See Larson, “Women Understand So Little, They Call My Good Nature ‘Deceit’ A Feminist Rethinking of Seduction, 93 Columbia L. Rev. 374, 382 (1993). The statute carries the unacceptable implication that a parent “owns” a daughter and that if the parent’s “goods” are damaged, the “owner” should be compensated. Moreover, the statute even applies to adult daughters who are living at home. Certainly, today, an adult daughter who is living at home is not under the dominion and control of her father, and if she has a consensual sexual relationship, it does not bring the “ ‘dishonor and disgrace,’ ” Mosley, 172 Ga. at 200, upon her parents that it might have brought in 1863. By perpetuating the idea that an adult daughter who lives at home is under the control of her parents and the idea that, when she engages in a consensual sexual relationship, that relationship immeasurably damages her parents, the statute fails to recognize the long sought after freedom and independence which has been achieved by women.
Further, the statute runs contrary to modern notions that actions should be brought in the name of the real party in interest. See OCGA § 9-11-17. If the seduction of a daughter truly creates harm, then it clearly harms the daughter, who then should be the party having the right of action.8 Many states have reformed their seduction statutes to account for this reality, but Georgia has not. See Larson at 386; Prosser & Keeton on Torts, § 124, p. 928 (5th ed. 1984).
*308Decided June 27, 1994. Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, Hillard J. Quint, for appellant. Harben & Hartley, Phillip L. Hartley, Martha M. Pearson, E. Victoria Sweeney, John E. Mahan, for appellee.Further, the statute does not fit within the framework of current constitutional law because it discriminates against the parents of male children by only providing a cause of action for the seduction of a daughter, and because it gives preferential treatment to fathers by permitting them, if they are living and present, to bring the action to the exclusion of mothers. Such gender-based classifications are out of touch with today’s constitutional standards. See, e.g., Stepperson v. Long, 256 Ga. 838, 839-840 (1) (353 SE2d 461) (1987) (holding that a statute that gave a cause of action to a father or, if the father was dead, to the mother, was unconstitutional). See also Prosser & Keeton on Torts, § 124 at 926, 928 (stating that if an action for seduction is to be maintained, it should lie for the seduction of a male child and should not give the father preference to bring the action). However, even if § 51-1-16 were revised or interpreted to permit either parent of a seduced male to bring an action, the statute would nonetheless still suffer from the anachronisms and obsolescence outlined in the preceding two paragraphs of this concurrence.
The final factor in deciding that the statute should be declared obsolete is that the statute has largely fallen into disuse. Indeed, the statute has seen negligible use since its enactment in 1863, and since 1932, see Odum v. Bergman, 45 Ga. App. 180 (163 SE 916) (1932), the only reported cases of its use are the present case and Brayman v. Deloach, 211 Ga. App. 489 (1) (439 SE2d 709) (1993). Although disuse might not be a decisive factor in holding this, or any, statute obsolete, the fact that the statute has seldom been used in 131 years and not at all in about 60 years sends a signal that the statute is not being relied on by the general public and is thus a factor to consider in determining whether to force a reconsideration of the law by the people’s representatives.
Because § 51-1-16 is based on outdated legal and societal notions and has a significant history of disuse, the statute should be repealed as being obsolete, thus forcing the General Assembly to reexamine the tort of seduction in view of modern day concepts. Thus, in addition to the reasons given in the majority opinion, I would affirm the trial court’s judgment on the ground that the statute is obsolete.
In Printz, the court noted that the idea that courts can hold a statute void under these types of circumstances originated in Roman Law.
“Accordingly, it is absolutely right to accept the point that statutes may be repealed not only by vote of the legislature but also by the silent agreement of everyone expressed through desuetude.”
Printz at 725, n. 3 (quoting from Book One of The Digest of Justinian 32).
Professor Bork states that
[t]here is a problem with laws like these. They are kept in the code books as precatory statements, affirmations of moral principle. It is quite arguable that this is an improper use of law, most particularly of criminal law, that statutes should not be on the books if no one intends to enforce them. It has been suggested that if anyone tried to enforce a law that had moldered in disuse for many years, the statute should be declared void by reason of desuetude.
R. Bork at 96.
Although it is no longer necessary to prove a loss of service, see Mosley, 172 Ga. at 198, the remainder of the quotation from Kendrick remains valid.
The woman’s consent to the sexual relationship, if not vitiated by fraud or force, would be a defense to the woman’s action for seduction. See Larson at 386-387.