Adultery as a defence: the construction of a legally permissible violence, England 1810

Menis, Susanna (2023) Adultery as a defence: the construction of a legally permissible violence, England 1810. Histories 3 (2), pp. 76-97. ISSN 2409-9252.

Abstract

The Mawgridge’s case in 1707 set the precedent where adultery was recognised as a justified trigger for the husband’s killing of his wife’s lover; this crystallised a partial defence for provocation. However, in an 1810 case, the killing of the unfaithful wife followed a manslaughter conviction rather than murder for the first time. This study aims to investigate the shaping of a legally permissible violence, that is, the mitigation of the husband’s culpability in killing his adulterous wife. This provides the opportunity to question the (ir)rationality behind the judiciary’s discourse in the case of R v Clinton 2012; here, despite infidelity being abolished in 2009 in England and Wales as a defence for murder, the judges still insisted on its relevance in our culture and hence on legal culpability. The theoretical framework in this paper draws upon the scholarship of masculinity, the family, and the law. This paper discusses the contribution of the hegemonic male identity in creating this legal violence and fortifying social-hierarchical structure.

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