By:Thomas Fleming | October 04, 2010
In the Russian novel, And Quiet Flows the Don, a family feud breaks out when a young Cossack intervenes to prevent a neighbor from beating his wife to death. He suspected her of adultery, but he had been beating her systematically from the first day to punish her for being raped before getting married. Cossacks are a violent people, but the redneck element among European Celts, Germans, and Slavs had little reluctance to use corporal punishment on the slightest of pretexts.
A woman's only protection came from the men in her family, if they were willing to take the "law" into their own hands, or in her willingness and ability to defend herself. I once had a secretary, a wiry woman married to a bear of a man. When she regaled a group of women with her husband's tempter tantrum over supper—she fed him beanie-weanies after two days at sea—they asked if he ever beat her. "He might hit me once," replied the local Klan leader's daughter, "but he'd best never go to sleep again."
In Greek and Roman literature and history, we hear very little of wife beating. In comedy, women can be shrewish or demanding without fear of physical retaliation: In the Lysistrata, the wives deny sexual favors to their husbands in order to end the war, and the husbands do nothing but whine, and pine. So much for the Athenians as a race of homosexuals! There is something unmanly about beating women, unmanly and sickening. No such disgusts attaches to the killing of a wife who has dishonored her husband's bed.
Is it ever right to use physical force against a wife or children? Are there situations where a man might legitimately kill his wife and her lover or rebellious children? The easy answer for a modern is to say, "of course not!" Adultery is a trivial offense, and, besides, the "state holds a monopoly on the use of violence." But this latter statement is an expression of German state-centered nationalism and not an adequate statement of historical fact or an accurate reflection of the Christian tradition. Let us avoid hasty answers and take a brief look at some historical models.
In English law husbands had the right to inflict corporal punishment upon children, servants, apprentices, and wives. By the 18th century this right had been curtailed severely, and a husband was forbidden to inflict any permanent damage. As early as Blackstone's day, some jurists viewed wife-beating as a lower-class remnant of crude archaic times. Restrictions on wife-beating developed in 19th century America, partly as an outgrowth of the temperance movement (drunkards often beat their wives), partly as a response to the incipient women’s movement, and partly as an expression of a more humane culture. However, this did not mean that husbands were routinely punished for chastising their wives physically, since judges and juries were reluctant to intrude too far into the arcana of domestic life.
Nonetheless, a wife's best protection from an abusive or spendthrift husband was not the law but her relatives and the court of public opinion. In the Old South, one of the most frequent causes of dueling were the quarrels of brothers-in-law over the treatment of the sister and wife.[i] In Georgia, where the law restricted a husband right to beat his wife, "only a broken rail and cool headed intervention prevented a lynching when the husband of one of the mill girls in Columbus attempted to beat her."[ii] In a more modern and mobile society, a husband's patriarchal privileges could be abused by fortune hunters and wife-beaters who might more easily escape detection in a community where he and his wife are unknown or, if his crimes are discovered, flee revenge by moving to another place where anonymity may be reestablished. The dissolution of community and family ties has been a major cause of the legal revolution that liberated women from their husbands, but it has also been a result.
In most parts of the Old South, a husband who caught his wife in the act of adultery, could be excused for killing either or both parties. This legal principle, which goes back directly to the Germanic ancestors of the British and American peoples,[iii] was not an expression of barbarian cruelty; in fact, similar principles, mutatis mutandis, were followed to one extent or another in the ancient world. An Athenian husband was obligated to divorce his adulterous wife, and she was forbidden to attend religious ceremonies or to wear ornaments.[iv] The injured husband could kill his wife's lover on the spot, or, if he preferred, mistreat him or hold him for ransom. "It seemed natural that a man who stole one's property or one's wife should be resisted by an immediate use of force, instead of being calmly referred to some higher authority for trial...."[v]
In republican Rome, a husband or father could kill an adulterous woman and her lover,[vi] but this right was severely curtailed by a law of Augustus (the Lex Julia), and a husband who took the law into his own hands could be executed for murder. In time, however, future emperors reduced the penalty on the grounds that a cuckold had experienced a iustus dolor, which might explain, without entirely excusing, the homicide. The subsequent influence of Roman law on medieval Europe took "killing for honor" out of the legal arena, and until 1981 an Italian husband could kill the adulterous pair with impunity.[vii] Even today, in Europe and the United States, juries will occasionally take the "unwritten law" into consideration.
Killing an adulterous wife and her lover was excused, in later Roman and civil law, under the fiction that the husband's natural indignation temporarily overcame his obedience to law. To use a more nearly modern phrase, it was a crime of passion, which could be justified even by progressive-minded men in the 20th century. The killing of adulterers is hardly unknown even today. One of E.M Forster’s less attractive characters declares: "If a man played about with my sister, I'd send a bullet through him."[viii] A more accurate term for such an action would be revenge-killing, a concept that was sanctioned in the legal traditions of Germans, Celts, and Slavs but was eliminated from Roman law at a date so early it left only a few traces.
This so-called unwritten law endured until recently in many parts of the world, including Texas, whose Penal Code (down to 1974) declared that a homicide was justifiable "when committed by the husband upon one taken in the act of adultery with the wife, provided the killing takes place before the parties to the act have separated.[ix] Such circumstances cannot justify a homicide when it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection."[x] Even though the killing of an adulterous wife is no longer legal in Texas, some men have received lighter sentences when juries believed they acted under the influence of a sudden passion.[xi] In 2003, an Arlington husband found his wife and her lover in flagrante delicto. When the wife had the presence of mind to cry “rape,” her husband shot the lover. The grand jury refused to indict the husband for murder but did indict his wife for manslaughter. The wife received a five year sentence.[xii] This legal tradition, at its best rather open to abuse, is now so badly understood that a Maryland judge in 1994 used it to extenuate an adulterous wife's murder, even though the husband let the lover escape and spent several hours getting drunk and torturing his wife.
I'll continue this discussion in greater detail if there is any interest in it.
[i] Bertram Wyatt-Brown, Southern Honor, p. ?
[ii] Boatwright 1941, p. 314
[iii] Cf. Visigothic Code III .iv, p. 96S.P. Scott
[iv] Lacey, p. 124.
[v] McDowell, p. 114.
[vi] Who held the authority, whether father or lover depended upon the form of marriage into which the couple had entered.
[vii] Cantarella, in Kertzner & Saller, pp. 229-44.
[viii] E.M. Forster, Howard's End, ch. XXXIX.
[ix] Texas Penal Code, art. 1220 (Vernon's 1961]
[x] Cf. Utah Code Ann. 76-30-10 (5): homicide justifiable "when committed in a sudden heat of passion caused by the attempt of the deceased to commit rape upon or to defile the wife, daughter, sister, mother, or other female relative or dependent of the accused, or when the defilement has actually been committed." ]
[xi] As in the case of Paul Jackson in Boerne in June 2001, reported in the San Antonio-Express News, June 17 2001, 1 B.
[xii] Fort Worth Star-Telegram, May 5, 2008, page 1.