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.

3 comments

  1. The paper makes a compelling case for suggesting that the judges in R v Clinton misunderstood the historical context of provocation caused by infidelity. It might also be suggested that the correctness of the decision is questionable on other grounds.

    Three appeals are considered at [2012] EWCA Crim 2, the decision in which the court referred to the lessons to be drawn from “experience over many generations”. In two of them, the appeals against conviction were dismissed. However, in R v Clinton the court held that the trial judge had been wrong not to leave the defence of “loss of control” to the jury, and ordered a new trial.

    Sections 54 and 55 of the Coroners and Justice Act 2009 (UK) (“the CJA”) replaced the provocation provisions in the Homicide Act 1957, They afford a partial defence to murder where the accused (D) suffers a “loss of control” which had a “qualifying trigger”. A “qualifying trigger” is defined in s 55 of the CJA and can be constituted by things done or said to D. Importantly, s 55(6)(c) of the CJA provides that “in determining whether a loss of self-control had a qualifying trigger … the fact that a thing done or said constituted sexual infidelity is to be disregarded”.

    The language is not pellucid. It is not especially easy to see how something said can actually constitute sexual infidelity, rather than reveal or assert it. In practice, it seems to have been accepted that if someone claims to have been having an affair, this activity constitutes sexual infidelity.

    The court recognised, unexceptionably, that “[i]f there is evidence on which the jury could reasonably conclude that the loss of control defence might apply, it must be left to the jury: if there is no such evidence, then it must be withdrawn”.

    The provisions are to be applied in a trial in a way which recognises the incidence of the burden of proof. That is, when s 54(1)(b) of the CJA states that “the loss of control had a qualifying trigger” it must mean that, if the accused properly raises that issue, the prosecutor must negate it. But subject to this rider, the provisions are exhaustive.Section 55(2) provides that a loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. Qualifying triggers are, essentially, D’s fear of violence (s 55(3)), or damaging things done or said to D (s 55(4)), or a combination of both of these (s 55(5)). In R v Clinton, the relevant criterion must have been the accused’s justifiable sense of being seriously wronged by things done or said to him

    The passage about experience, more fully set out, states that “daily experience in both criminal and family courts demonstrates that the breakdown of relationships, whenever they occur, and for whatever reason, is always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury. Meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response”.

    These statements were made in a discussion of what was meant by the exclusion of sexual infidelity as a “qualifying trigger” and of whether it would ever be relevant to take into account sexual infidelity when linked with some other conduct. The court said that “[t]he question is whether or not sexual infidelity is wholly excluded from consideration in the context of features of the individual case which constitute a permissible qualifying trigger or triggers within section 55(3) and (4)”. The court then concluded that “the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury”.

    With respect, however, it is difficult to find in Clinton anything other than the victims’s sexual infidelity which could have caused the accused to have a justifiable sense of being seriously wronged. Whether or not the court was correct in its adoption of Darwin’s concept of sexual jealousy, the court’s own standards and logic, represented by this statement, mandated the conclusion that the accused’s “highly emotional”, “completely unpredictable” and “violent” behaviour was just what the court, in this passage, implicitly suggested that it was – a response:to his wife’s sexual infidelity. On that basis, and given the required statutory exclusion, it is hard not to think that the trial judge was not only “characteristically courageous”, but that she was right.

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    • I am tempted to add that this seems to me not to be the only occasion on which some judges have been slow to accept legislative changes to what is seen to be a longstanding legal position.

      In Australia, where I practise, most jurisdictions have legislated to alter the approach to the prosecution of sexual offences against children. Earlier authorities like Hoch v R [1998] HCA 50; (1998) 165 CLR 292 required that where more than one child complained about alleged sexual abuse by the same perpetrator, there was almost invariably a series of separate trials, wholly cloistered from each other, in which the evidence of each complainant was heard separately. The reasoning (using the term loosely) behind Hoch was the concern that children might collude to fabricate evidence of sexual impropriety against an adult. The concern was not based upon any factor in a particular trial, and was hardly ever the subject of evidence, let alone proof. Like the “experience over many generations” mentioned in R v Clinton, this judicial norm was so patently obvious that it did not need anything as mundane as empirical support or objective enquiry in order to conform its self-evident truth. Further, if evidence were ever to be admitted from more than one child, juries were routinely warned against forming any view that an accused person might have a propensity to commit sexual offences against children.

      Those positions have been abrogated by provisions in the Uniform Evidence Acts adopted by the Commonwealth, New South Wales, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory. The relevant provision is still couched in exclusionary terms and prevents the admission of evidence “of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind (‘tendency evidence’) unless the court thinks that the tendency evidence will have ‘significant probative value’”. In Hughes v R [2017] HCA 20, a bare majority of the High Court held that a trial relating to allegations by several complainants against one accused had not been conducted unfairly, and that the evidence of each of the complainants had been admissible. The three members of the court who dissented all referred to the prejudicial effect that could occur if a single jury were to hear all of the allegations made by different complainants against the same accused.

      Hughes can be compared to an earlier decision of Phillips v R [2006] HCA 4; (2006) 225 CLR 303, where the High Court considered similar but not identical legislation in Queensland. Section 132A of the Evidence Act 1977 (Qld) relevantly provided that “similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion and the weight of that evidence is a question for the jury”. However, the legislation considered in Phillips had not amended the concept of “similar fact evidence”, which was admissible only if “viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused”. The contested evidence in Phillips was that the accused, on social occasions, had propositioned teenage girls whom he knew, and had ignored their rejections of his advances to progress to non-consensual sexual penetration. The accused denied sexual activity in some instances; in others, he admitted that the activity had occurred but asserted that it was consensual. The High Court held that the evidence of the six complainants had been wrongly admitted because “to tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth”.

      In the course of argument in a later case of Stubley v R, Heydon J described Phillips as “one of the most criticised decisions of the High Court of all time”: [2010] HCA Trans 269. In an article in the University of New South Wales Law Journal, David Hamer noted that, following the High Court’s quashing of the convictions in Phillips v R, the accused (P) was tried again, although only two of the five remaining complainants were prepared to give evidence at another trial. In March 2007, P was convicted of rape. He subsequently pleaded guilty to having twice raped a young woman in May 2006, while on bail following the success of his High Court appeal. The judge who sentenced P in 2007 for three rape convictions told him that, “[t]he offences themselves are somewhat similar. They involve you in social situations approaching girls with requests for sexual favours, them rejecting those requests and you persisting and with the use of some force, in obtaining intercourse with them”.

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