Posted by Eugene Volokh:
The Unwritten Law, Written:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184343964
I'd often heard of "the unwritten law," under which a husband who
caught his wife and another man having sex would be acquitted for
killing the other man -- not just found guilty of mere manslaughter
rather than murder (which tends to be still the law today, under the
right circumstances), but entirely acquitted. I had assumed that it
was a matter of custom and jury and prosecutor discretion ("no jury in
the land would convict me").
But, as I just learned (entirely from reading cases, mind you), this
was actually the written law -- either statutory or common law -- in
several U.S. states until the 1970s. Here's a summary from Jeremy D.
Weinstein, Adultery, Law, and the State: A History (1986), though I've
read some of the cited cases myself:
Some American states, either by statute or judicial decision, made
it legal for a husband to kill an interloper caught in the act of
adultery with his wife. [Footnote: The civil law provides an
interesting comparison. Its primary difference from the common law
is that since ancient times the cuckold was allowed to kill the
wife as well as the marital interloper.] ...
Until 1974, when it was repealed, [a] Texas statute provided:
Homicide is justifiable when committed by the husband upon one
taken in the act of adultery with the wife, provided the killing
take place before the parties to the act have separated. Such
circumstance cannot justify a homicide where it appears that there
has been, on the part of the husband, any connivance in or assent
to the adulterous connection.
... Although an early case established that the statute permitted
the husband to kill his wife as well as her paramour, Texas courts
criticized this interpretation and reversed it the following decade
[in 1925]. Furthermore, Texas judges refused to extend the statute
to permit a wife to kill her husband's paramour. Under the Texas
statute, the injury to the paramour was only justifiable when
inflicted with the intent to kill [as opposed to, in one case,
castrate]....
Until 1977, Georgia [common law] also permitted a husband or father
to kill the paramour of his spouse or child under limited
circumstances.... The Georgia courts interpreted the justifiable
homicide law as a class of self-defense, while the Texas statute
was in effect a law allowing revenge. The most significant
distinction between the Georgia and Texas rules was that the
killing under the Georgia rule was defensive in nature and had to
be necessary to prevent and defend against the adultery. A killing
after the adultery was vengeance, and therefore was murder or
manslaughter depending on whether it was committed in the sudden
heat of passion. The defensive nature of the justification allowed
killing to stop an adulterous relationship of which the husband or
father was aware if it seemed to the husband or father to be the
only way to do so. In contrast, under the Texas statute a husband
was only permitted to act if he was surprised with a present
adultery.... [The law] extended to the protection of daughters and
fiancees, although evidence of the woman's chastity was admissible
on the question of whether it was necessary to kill to protect it,
which was a question for the jury.
In contrast to the situation in Texas, in Georgia the wife could
kill her husband's paramour, but just as in Texas, the spouse was
not permitted to kill the other spouse. Another difference between
the Georgia and Texas justifiable homicide rules was that, in
Georgia, the paramour [generally was not allowed to use lethal
force to defend himself against the spouse's lethal attack]....
[Until 1973], two other American jurisdictions, New Mexico and
Utah, had statutes justifying the killing by a husband of his
wife's paramour if he found them together in adultery. [Unlike the
rationale given by Georgia courts, the New Mexico courts framed the
matter as one of excuse rather than justification]: "[t]he purpose
of the law is not vindictive. It is humane. It recognizes the
ungovernable passion which possesses a man when immediately
confronted with his wife's dishonor. It merely says the man who
takes life under those circumstances is not to be punished; not
because he has performed a meritorious deed; but because he has
acted naturally and humanly."
Incidentally, a 1975 Georgia appellate case that began the abrogation
of the Georgia rule drew a three-judge opinion that began (in relevant
part), "I violently dissent." "What were the rights of the common law
wife [who caught her common law husband in adultery with another
woman] -- to walk away, taking no action whatever to prevent the act
of adultery, or its completion? That is directly at variance with the
law of Georgia!" (Note that the dissent wasn't just arguing that the
defendant should have had the benefit of the old rule, however wrong,
but seemed to be defending the rule itself, and arguing that the rule
justified killing of the spouse as well as of the spouse's paramour.)
A pretty appalling state of affairs, and shocking that it persisted
until 30 years ago.
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