The Short History of the Infidelity Defence in England

Did England ever have a “tradition” allowing lighter punishments for men who killed unfaithful wives?

 Posted by Krista Kesselring; 8 August 2016.

Women deemed unfaithful to the men they marry can be legally, openly killed in parts of the world. Even where such killings aren’t legal they are still all too common. In England and Wales today, one woman is killed every three days by a current or former intimate partner; in Canada, where I write, it’s one every six days. The prevalence of such killings is arguably linked to the fact that they are often treated more leniently than other murders, especially when infidelity is thought to be a factor.[1] A sense persists that such acts of revenge, dressed up as ‘crimes of passion’, are somewhat more excusable than other killings.

The notion that historically, a husband could kill his unfaithful wife with some degree of impunity has a tenacious hold on some legal professionals, as well as a number of historians and literary scholars. In 2009, law reformers proposed a new homicide act for England and Wales that explicitly did away with the infidelity defence that had allowed men who killed adulterous wives to claim the provocation sufficient to reduce a murder charge to manslaughter. In response, some MPs and judges fretted that the change ignored ‘thousands of years of human experience and history’. The appeal court judges who more recently reintroduced the substance of the defence, though now excused by ‘loss of control’ rather than provocation, similarly referred to ‘experience over many generations’ in their reasons for doing so.[2]  Historians and literary scholars, too, often assume that (as one wrote), ‘In England, there was a well-established tradition that a husband could lawfully kill an adulterous wife caught in flagrante delicto.’[3]

Yet this just wasn’t so. In an article recently published in the Law and History Review (2016), I make a case for ditching this widely shared and dangerous myth, a shorter version of which I’ll offer here.  Simply put, in English legal history, the judicial acceptance of adultery as a provocation of the sort that could reduce a charge of murder to manslaughter came late in the development of provocation defences over the seventeenth century. Moreover, when it developed, and for a long time thereafter, it mitigated only a husband’s killing of the other man, not of his wife.  The adultery defence as we understand it today seems to have emerged in the nineteenth century, not earlier. Only in the nineteenth century do we see mounting evidence of popular beliefs, held by judges as well as jurors, that husbands might be somewhat excused for killing their unfaithful wives, not just their male rivals, with the novelty masked by talk of an “unwritten law” sanctioned by long history.

Very often, I think, we’ve conflated the husband’s killing of either or both the adulterous wife and her male lover. In neither medieval English law nor practice do we find suggestions that a man might be excused for killing his wife because of her infidelity. Law did not treat the killing of the male rival any differently, but we do see a few indications of popular sympathy for men who killed the other man: scholars who’ve sifted through medieval English court records have not brought to light cases in which a husband was excused for killing an unfaithful wife, but have found a number of cases in which juries saved from the gallows men who’d killed their male rivals through crafting elaborate tales of the killings actually being in self-defence.[4]

My own work on sixteenth and seventeenth-century legal records suggests much the same: no signs of mercy for men who killed adulterous wives, but occasional glimpses of sympathy for men who killed the other man. We have a couple of petitions for pardons of such killers, but again, they rewrite the stories as instances of necessary self-defence. In 1531, for example, when Walter Basset faced a death sentence for killing the man who had indulged his ‘voluptuous and sensual appetites’ with Basset’s wife, Basset pleaded for pardon with the story that the adulterer had broken into his house at night and attacked him. Only from fear for his life, ‘perceiving that the said [man] would have slain him’, only then did Basset give the man an unarmed punch, he said.[5]  I have found a few other cases like this, but none to indicate that adultery formally served to mitigate a murder charge, and the only signs of sympathy – through self-defence verdicts and pardons – were limited to the violence between two men, not between a man and his wife.

Of course, it was only in the sixteenth century that we see a formal distinction made between murder and manslaughter, or between more and less serious forms of criminal homicide, with men convicted of the lesser form of killing likely to evade the death penalty. (Women were not able to use the ‘benefit of clergy’ that allowed men convicted of manslaughter to avoid capital punishment.) Over the seventeenth century, judges turned their attentions to deciding which sorts of provocations could legitimately reduce a charge of murder to manslaughter. Responding to a physical attack on a family member, experiencing a grossly insulting though not dangerous physical assault, and seeing someone unlawfully restrained came to be treated as sufficiently provocative that a killing in response to one of these affronts, while neither justifiable nor excusable, could be considered manslaughter rather than murder.[6] In 1671, judges added a fourth category of provocation: seeing a man committing adultery with one’s wife.

In the case that led to this determination, John Manning was indicted at the Surrey assizes for murder. The jury determined that Manning had found the victim ‘committing adultery with his wife in the very act’ and had thrown a stool at him, inflicting a fatal wound. The whole court resolved that this was merely manslaughter; as such, Manning was branded and released. In a much quoted line, moreover, the court directed the man doing the branding ‘to burn him gently, because there could not be greater provocation than this.’[7]

The defence received its definitive statement in a law report from 1707. In a short but significant line, Chief Justice Holt opined that ‘where a man is taken in adultery with another man’s wife, if the husband shall stab the adulterer or knock out his brains, this is bare manslaughter; for adultery is the highest invasion of property, and there cannot be a greater provocation: and jealousy is the rage of a man.’[8] So, here, then, at the end of the seventeenth century and into the eighteenth, many years after manslaughter first emerged as a verdict, adultery becomes not just a provocation for killing but the greatest such provocation. Crucially, though, the killing being mitigated was explicitly and specifically that of other man, not the wife. Yet it is the killing of the wife, today, that is said to be (or to have been) somewhat excusable, whether through provocation or loss of control, driven by some mix of outrage, jealousy, vengeance, or temporary defect of reason.

If the killing of the adulterous wife was not treated as manslaughter in the seventeenth century, when did it become so? Can we find cases of husbands killing unfaithful wives in which jurors downgraded charges of murder to manslaughter, or in which petitions for pardon secured mercy for a convict on the grounds of provocation? And if so, when?

That change seems to date to the nineteenth century, not before. Surveying cases from London’s Old Bailey from 1690 forward, the first case of a husband killing a wife in which the victim’s sexual infidelity clearly prompted a conviction for manslaughter rather than murder happened in 1810, with Richard Griffin’s killing of his wife Anne.[9] In earlier killings, imputations of the wife’s adultery appear, but in none of them did it serve to moderate the charge. Nor did the defendants or their counsel even seem to try making it matter. The Old Bailey was not, of course, England’s only criminal court. Some others before Griffin may very well have benefited from similar sympathies in earlier years in other jurisdictions; but the evidence suggests that we need to prove and no longer assume earlier instances of lenience for men who killed unfaithful wives.

Around the mid-nineteenth century, it seems that such killings and such defences became more common and more commonly treated with sympathy. Martin Wiener’s survey of killings reported in newspapers throughout the country, from 1841-1900, found 66 trials for homicides purportedly done in response to a legally married wife’s known or suspected infidelity.[10] They increased in frequency over the period, and as a proportion of the overall numbers of homicides. And in the middling decades of the century, at least, some such killers found mitigation in either manslaughter verdicts or reprieves after conviction for murder. But, ‘as the century wore on’, Wiener suggests, ‘English juries and English public opinion seemed to be less inclined to excuse the lethal responses of men to their imagined or actual cuckolding.’[11] True. I would suggest, though, that this was not a repudiation of ‘traditional’ or ‘longstanding’ lenience for men who killed unfaithful partners. Rather, it was a reversal of a relatively short-lived and contested toleration for such killings.

What we see in the nineteenth century is a greater sense of the harm done to a cuckolded man, and a shifting of the blame from the male lover to the adulterous wife.  Shifting notions of marriage and of ideals of both femininity and masculinity presumably played parts in the nineteenth-century efflorescence of arguments that a husband’s killing of an unfaithful wife was to some degree excusable. A rhetoric of companionate, affectionate partnerships based on love and emotional ties came to dominate talk of middle class marriage. So, too, did earlier depictions of women as sexually voracious lose ground to notions of the reluctant, restrained, or even passionless female.  As marriage became romanticized as the site of consolation and comfort and as women became idealized as the chaste guardians of virtue, the provocative quality of adultery inhered more in the wife’s unfaithfulness than in the other man’s ‘invasion’ of a husband’s rights.

Why the myth of a husband’s ‘right’ to kill an unfaithful wife remains so strongly held today might warrant examination. Evidence indicates that such a ‘right’ had a very short history in English legal practice. In England, the belief that a man might cite a woman’s sexual behavior as a mitigating factor in her killing did not shape ‘experience over many generations’, but took hold in the nineteenth century alongside newer notions of companionate marriage and women’s sexual restraint. It was in this relatively new and historically specific context that Charles Darwin would write, in 1871, that sexual jealousy was a ‘universal instinct’. Whatever the universal or instinctive qualities of the jealousy, seeing adultery as grounds for excusing or justifying the killing of a married woman was neither. Rather, it was the product of an historical moment.

 

-For the full article (and complete references), see ‘No Greater Provocation? Adultery and the Mitigation of Murder in English Law’, Law and History Review 34.1 (2016), 199-225,© Cambridge University Press. Extracts reproduced here with permission.

-Image: Guerino’s Christ with the Woman Taken in Adultery (1621), a public domain image from Wikimedia Commons.

 

 

 

 

 

 

[1] See: http://www.refuge.org.uk/get-help-now/what-is-domestic-violence/domestic-violence-the-facts/

http://www.cbc.ca/firsthand/features/the-alarming-stats-on-domestic-violence-in-canada

The most recent data for England and Wales from the Office for National Statistics indicates that in 2013/14, 46% of female homicide victims (84/183) and 7% of male victims (24/343) were killed by a current or ex-partner. The report does not specify the sex of the partner, so one is left to assume that these were heterosexual unions. Violent Crime and Sexual Offences- Homicide (ONS, 12 February 2015), p. 1.

A particularly powerful discussion of the broader problem of domestic violence in the recent past can be found in the Pulitzer Prize winning 2014 series in the South Carolina Post and Courier, which opens with the observation that ‘More than three times as many women have died here at the hands of current or former lovers than the number of Palmetto State soldiers killed in the Iraq and Afghanistan wars combined.’: http://www.postandcourier.com/tilldeath/title.html

[2] Coroners and Justice Act 2009, especially s. 55 (6)(c); for the parliamentary discussions, see 9 November 2009, House of Commons Debates, Hansard, col. 85; for similar objections in the House of Lords, see  7 July 2009, House of Lords Debates, Hansard, cols 589-90; [2012] EWCA Crim 2., 1 Cr App R 26. For discussion of this case, see: Dennis J. Baker and Lucy X. Zhao, ‘Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity’, Journal of Criminal Law 76 (2012), 254-75. For discussion of the broader effort to reform homicide law in ways that diminish traditional gender biases, see Danielle Tyson, Sex, Culpability and the Defense of Provocation (New York, 2013); Jeremy Horder, Homicide and the Politics of Law Reform (Oxford, 2012), esp. pp. 205-11; and Carolyn B. Ramsay, ‘Provoking Change: Comparative Insights on Feminist Homicide Law Reform’, Journal of Criminal Law and Criminology 100 (2010), 33-108.

[3] Keith Thomas, “The Puritans and Adultery: the Act of 1650 Reconsidered,” in Puritans and Revolutionaries, ed. Donald Pennington and Keith Thomas (Oxford: Clarendon Press, 1978), 257-83, quote at 268.

[4] T.A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago: University of Chicago Press, 1985), 42-3; Sara M. Butler, The Language of Abuse: Marital Violence in Later Medieval England (Leiden: Brill, 2007), 98-103; Elizabeth Papp Kamali,“’The Devil’s Daughter of Hell Fire: The Role of Anger in Medieval English Felony Adjudication,” forthcoming.

[5] TNA, SP 1/73, f. 24.

[6] See Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992).

[7] Manning’s Case (1671), 83 Eng. Rep. 112 (Raym. 212). In 86 Eng. Rep. 108 (1 Ventris, 158) the accused is called John Maddy.

[8] Mawgridge’s Case (1707), 90 Eng. Rep. 1167.

[9] Oold Bailey Proceedings Online, (www.oldbaileyonline.org, version 7.1, 29 May 2014), September 1810, trial of Richard Griffin (t18100919-56).

[10] Martin Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge, 2004), p. 201. Note that Wiener is careful to distinguish between legally married and more casually united couples, and between those where the infidelity was accepted by the court (43 cases) and those where it remained unsubstantiated (23).

[11] Ibid., p. 205. See, too, Foyster, Marital Violence, pp. 115-22, which also describes late nineteenth-century distancing from such defences as a narrowing or shift from a longstanding tradition.

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