CASE 52:... But Not His Own Wife
D. 48.5.39.8 (Papinianus libro trigensimo sexto Quaestionum)
Imperator Marcus Antoninus et Commodus filius rescripserunt: “Si maritus uxorem in adulterio deprehensam impetu tractus doloris interfecerit, non utique legis Corneliae de sicariis poenam excipiet.” nam et divus Pius in haec verba rescripsit Apollonio: “Ei, qui uxorem suam in adulterio deprehensam occidisse se non negat, ultimum supplicium remitti potest, cum sit difficillimum iustum dolorem temperare et quia plus fecerit, quam quia vindicare se non debuerit, puniendus sit.
sufficiet igitur, si humilis loci sit, in opus perpetuum eum tradi, si qui honestior, in insulam relegari.”(Papinian in the thirty-sixth book of his Questions of Law)
The Emperor Marcus Aurelius and his son Commodus (coreign: A.D. 175-180) sent this rescript: “If a husband, borne on a flood of anger, kills his wife whom he catches in adultery, he will at least not receive the penalty of the lex Cornelia on murderers.”
For the deified Emperor Antoninus Pius (reign: A.D. 138-161) sent a rescript to Apollonius, as follows: “When a man does not deny that he killed his wife whom he caught in adultery, capital punishment can be remitted, since it is very hard to restrain legitimate anger, and his punishment should result from his doing more (than he should have) rather than from his having no duty to take revenge. So it will suffice, if he is of modest rank, that he be handed over to a life of hard labor; and if of more respectable rank, that he be relegated to an island.”
1. Killing Your Wife Is Wrong. Although the lex Iulia may not have specifically stated this, it granted no right to kill a wife. Thus, Papinian (Coll. 4.10.1) remarks: “In no section of the statute is a husband allowed to kill his wife; so it is clearly and unambiguously against the law for him to have done this.” Still, as in this Case, our sources tend to regard the crime as less serious than ordinary murder, although the penalties are still substantial; Papinian suggests a maximum punishment of exile, which does not entail loss of citizenship. Was it simply presumed that the husband had killed his wife out of anger? (Suppose, for instance, it can be shown that he was not angry.) It should be noted that, with respect both to the adulterer and to the wife, the husbands self-help rights are considerably narrower than those of a father with a daughter (Cases 95-96). What might explain this difference, granted that husbands were supposed to react with greater anger than fathers (Case 50)? For instance, Ulpian (D. 48.5.30 pr.) remarks of a man who caught his wife in adultery that he “ought to vent his rage on his wife, who has dishonored his marriage.” Of course, he could also “vent his rage” by prosecuting her for adultery.
2. Extending the Statute to Nonwives. The provisions of the lex lulia concerning a husband's rights when his wife commits adultery came to be applied widely: to betrothed women (Case 7) and wives not in valid Roman marriages (e.g., Ulpian, D. 48.5.14.1), although not to concubines (ibid. pr., 6). In extended applications, the affected male partner can prosecute the adulteress but not kill her (see Paul, Coll. 4.6.1, citing a rescript, on betrothed women).
D. 48.5.2.2-4 (Ulpianus libro octavo Disputationum)
(2) Lenocinii quidem crimen lege lulia de adulteris praescriptum est, cum sit in eum maritum poena statuta, qui de adulterio uxoris suae quid ceperit, item in eum, qui in adulterio deprehensam retinuerit.
(3) Ceterum qui patitur uxorem suam delinquere matrimoniumque suum contemnit quique contaminationi non indignatur, poena adulterum non infligitur. (4) Qui hoc dicit lenocinio mariti se fecisse, relevare quidem vult crimen suum, sed non est huiusmodi compensatio admissa. ideo si maritum velit reus adulterii lenocinii reum facere, semel delatus non audietur.(Ulpian in the eighth book of his Disputations)
(2) The crime of pandering (lenocinium) is set out in the lex lulia on adulterers, where a penalty is established against a husband who receives anything from his wife’s adultery or who retains her after she is caught in adultery. (3) But if a man allows his wife to misbehave and (thus) despises his own marriage and is not outraged at the contamination, the penalty for adultery is not inflicted on him.
(4) A man who says he acted (as an adulterer) because of the husband’s pandering wants to lighten his own offense, but an offset of this sort is not permitted. So if an adultery defendant wishes to accuse the husband of pandering, he will not be listened to after he is accused.
1. What Is Pandering? The derivation of the word lenocinium indicates that it means acting like a pimp (leno) who prostitutes women for money; and this is certainly one major form of the offense, which also is committed by an initially unknowing husband who receives “hush money” from an adulterer (Ulpian, D. 48.5.30.4). But pandering took on a much broader meaning in this statute. For instance, Ulpian (D. 48.5.30 pr.) uses the term for a husband who caught his wife in adultery and chose to keep her while letting the adulterer go.
Ulpian adds: “The husband should be punished when he cannot excuse his ignorance (of his wife's adultery) nor hide his indulgence by claiming disbelief.” So, is a husband, if he merely suspects that his wife may be having an affair, obliged to act on his suspicions and investigate further? Ulpian gives a sort of answer (ibid. 4): “But if he allows his wife to misbehave, not for profit, but because of his carelessness or fault or some indulgence or excessive trust, it seems that he does not fall within the statute.” Similarly, the Emperors Severus and Caracalla (C. 9.9.2; A.D. 199) explain: “The crime of lenocinium is committed by those who have retained in marriage a wife caught in adultery, not those who had a suspected adulteress.” Can the husband therefore just turn a blind eye unless he has actually walked in on his wife in flagrante delicto? Suppose, for instance, he receives an anonymous letter alleging her adultery, or he discovers incriminating physical evidence. What might have made the jurists hesitant to require extreme diligence from the husband?2. Pandering Equals Adultery. A number of sources say this, but the clearest is Tryphoninus, D. 4.4.37.1, quoted below in the discussion of Case 54. Does this mean that the pandering husband is an adulterer or just that the punishment is the same?
D. 48.5.27 pr.-1 (Ulpianus libro tertio Disputationum)
(pr.) Constante matrimonio ab iis, qui extra maritum ad accusationem admittuntur, accusari mulier adulterii non potest: probatam enim a marito uxorem et quiescens matrimonium non debet alius turbare atque inquietare, nisi prius lenocinii maritum accusaverit. (1) Derelictam vero a marito accusationem etiam ab alio excitari utile est.
(Ulpian in the third book of his Disputations)
(pr.) So long as her marriage endures, a woman cannot be accused of adultery by those persons who, apart from her husband, are allowed to bring an accusation (once the marriage ends). For a third party, unless he first accuses the husband of pandering, should not disturb a wife of whom her husband approves and trouble a tranquil marriage. (1) But it is (publicly) useful that an accusation abandoned by the husband be revived by a third party.
1. No Prosecution While Married. In this Case, the rule is clear: a wife cannot be prosecuted for adultery unless her husband first divorces her, and he is not compelled to do this; however, by failing to divorce her, he may run the risk of being accused of pandering by some third party. This helps to explain why he must divorce his wife immediately after killing an adulterer (Case 51). What legal advice would you give to a husband who found himself in this situation?
2. Prosecution. A criminal accusation of adultery can be lodged by third parties, although the law required accusation within five years of the alleged offense (Ulpian, D. 48.5.30.5-7). However, the husband (or, failing the husband, the wife's father) is preferred as a prosecutor of the woman for the first sixty days following a divorce (Papinian, D. 48.5.12.6); and it seems clear that the statute was encouraging an aggrieved ex-husband to act in this capacity. What might the reason be? The husband could also accuse the adulterer (Paul, Sent. 2.26.10).
3. A Convenient Checklist. At the end of the classical period, Tryphoninus (D. 4.4.37.1) lists the major cases in which a man can be convicted of “adultery” (i.e., as though he were an adulterer) without actually being an adulterer: “for example, if he knowingly takes as his wife a woman condemned for adultery or does not divorce a wife caught in adultery or makes a profit from his wife's adultery or receives money to conceal criminal debauchery (stuprum) or offers his home for the commission of stuprum or adultery within it.” As this list makes evident, the range of the offense stretches also to third parties who aid and abet adultery.
The first item on this checklist has the effect of condemning a convicted adulteress to a sort of permanent social exile, over and above any criminal penalty she suffers; the lex lulia was responsible for this extra punishment as well (Ulpian, D. 48.5.30.1). At most, the convicted adulteress could be kept as a concubine (Ulpian, D. 25.7.1.2). Does this strike you as overkill?C. 9.9.1 (Impp. Severus et Antoninus AA. Cassiae)
Publico iudicio non habere mulieres adulterii accusationem, quamvis de matrimonio suo violato queri velint, lex lulia declarat, quae, cum masculis iure mariti facultatem accusandi detulisset, non idem feminis privilegium detulit.
(Emperors Septimius Severus and Caracalla to Cassia; A.D. 197)
The lex lulia states that in a public trial women cannot bring an accusation of adultery even if they wish to complain about a violation of their own marriage. Although it (the statute) conferred on males the capacity to accuse (an ex-wife of adultery) by (using) a husband’s right, it did not confer the same privilege on females.
1. Why Can’t Women Accuse? The statutory prohibition, as stated in this rescript, prevents women from accusing anyone else, including their husbands, of adultery. What reason might the legislator have had for such a prohibition? What circumstances may have led Cassia to raise the question?
2. Debauchery (Stuprum). Although the jurists spend far more time discussing adultery because it intrudes directly on the private institution of marriage, Roman law also knew the criminal offense of “debauchery” (a loose translation of stuprum). As Papinian observes (D. 48.5.6.1), the lex lulia de adulteriis used the terms stuprum and adulterium indiscriminately; but technically adultery was committed only in the case of married women, while “stuprum is committed against a virgin (a never-married woman) or a widow or divorcee (vidua).” The statute expressly forbade both: “Let no one hereafter knowingly and intentionally commit stuprum and adultery” (Ulpian, D. 48.5.13). It therefore appears that the lex lulia was meant to regulate all consensual heterosexual relations in which at least one of the partners was free; and a few sources indicate that some illicit homosexual relations may also have been covered by the statute (e.g., Paul, Sent. 2.26.12: “A person who debauches an unwilling free male is capitally punished”; Papinian, D. 48.5.9 pr.). For males, stuprum was a potentially serious charge, and we have already seen some implications of it: a man must be very cautious if he lives in a long-term nonmarital union with a respectable freeborn woman (Case 18). In general, however, males were legally permitted to have extramarital affairs with slaves or disgraced women, while “respectable” females were not allowed any sex outside marriage. Further, charges of adultery seem to have been in fact far more common than those of stuprum. To what extent did the Emperor Augustus enact a genuine double standard? To what extent is this double standard likely to have been rather the result of law's inevitable operation within a male-dominated society?