When the Law Excused It

In 1707, in a case called R v Mawgridge, the Lord Chief Justice of England, Sir John Holt, explained why a man who killed on finding another man in adultery with his wife should be convicted of manslaughter rather than murder. Jealousy, he said, is the rage of a man, and adultery is the highest invasion of property.

The sentence is worth reading slowly, because each half tells you something. Jealousy is described as a man's rage: the law was imagining a particular person. And the injury is to property: the wife's infidelity wrongs her husband the way a trespass would, and the killing is the response of an owner to the gravest trespass there is.

English law was not unusual. For most of modern history, the legal systems of Europe and the Americas treated a husband's killing of an unfaithful wife, or of her lover, as a lesser crime than murder, and sometimes as no crime at all.

France wrote it into the penal code of 1810. Article 324 declared excusable the murder committed by a husband on his wife and her accomplice at the moment he caught them in the act in the marital home. Excusable did not mean acquitted; it meant a sharply reduced sentence. The excuse belonged to husbands only. A wife who killed her husband in the same circumstances had no equivalent, and adultery itself was punished unequally: a wife's adultery was an offence in any circumstances, a husband's only if he kept his mistress in the marital home. The provision lasted until 1975, when the law that reformed divorce also took adultery out of the penal code.

Italy's version was broader. Article 587 of the penal code of 1930, the crime of honour, gave a sentence of three to seven years to anyone who killed a spouse, daughter or sister on discovering an illegitimate sexual relationship, in the anger caused by the offence to his honour or his family's. Ordinary murder carried a far heavier penalty. Pietro Germi's film Divorce Italian Style, in 1961, built its plot on the arithmetic: in a country without divorce, a husband who wanted to be rid of his wife could arrange for her to take a lover, kill her, and serve a few years. Italy legalised divorce in 1970. Article 587 was repealed in 1981.

Texas went further than either. Until its new penal code took effect in 1974, Texas law classed as justifiable, which is to say as no crime at all, a husband's killing of a man taken in the act of adultery with his wife, provided it happened before the two had separated.

Three things are worth noticing across these laws.

The first is whose jealousy counted. In every case the protected rage was a husband's, and the framing was ownership or honour: an injury to the man's property or to his family's name, not to his heart.

The second is the shape of the anger the law recognised. English provocation required a sudden and temporary loss of self-control, which fits a man who walks in on a scene and acts at once. It fits badly a woman who kills an abusive husband after years of fear, and in the early 1990s English courts confronted that mismatch in cases such as that of Kiranjit Ahluwalia, whose conviction for murder was quashed in 1992.

The third is how late abolition came. The French excuse lasted 165 years, the Italian article half a century, the Texas rule into the 1970s.

England's reform is the most recent and the most instructive. The Coroners and Justice Act 2009 abolished provocation and replaced it, from October 2010, with a defence of loss of control. Parliament included an explicit instruction: that a thing done or said amounted to sexual infidelity is to be disregarded in deciding whether there was a qualifying trigger. Jealousy at infidelity, on its own, would no longer reduce murder to manslaughter.

Two years later the Court of Appeal, in R v Clinton, held that sexual infidelity, though it cannot be the trigger by itself, may be considered as part of the context in which other things were said or done. Critics said this let back in through the window what Parliament had put out of the door. Defenders said that a court cannot pretend not to know what happened in a relationship. Both have a point, and the difficulty is real: in a great many killings of partners, jealousy is the context.

The phrase crime of passion makes these laws sound like a concession to human nature, an admission that people in love are not always in control of themselves. The history says something more specific. The law did not excuse passion in general. It excused one person's passion, framed as a property right, and the long work of abolition has been the work of refusing to share it.